Can they actually mandate employees to get a vaccine or force you to go into the office, if you don't want to? We spoke with a employment and labor attorney for answers.
- All right. Hi, everybody. Welcome back. It is one of the biggest conversations happening as more of the country becomes vaccinated and returns to work. What exactly are employers allowed to do in reopening their office to workers? Can they actually mandate employees to get a vaccine or force you to go into the office if you don't want to? So joining us right now to get a better idea of this changing workplace is Jim Brown, an employment and labor law attorney and partner with Duane Morris LLP in San Francisco. Thank you so much for being here.
JIM BROWN: Oh, you're very welcome. I'm glad to share whatever thoughts I can share.
- Yeah. This has been top of mind for so many people, especially because Salesforce just announced today the reopening of its downtown San Francisco offices come May, but only for vaccinated workers, which is a little different because earlier Facebook and Google announced they would not be mandating vaccinations. Can employers be allowed to do this mandate someone get a vaccine? It seems to me like there are some ethical questions about it.
JIM BROWN: You know, that's a topic that everyone's been looking at and. From the letter of the law, employers are allowed to mandate the vaccine, assuming that certain things are taken into consideration. First, obviously the vaccine needs to be available for the workforce to have the vaccine. Number two, they need to take into account any serious health condition or medical reason that a worker may suffer from that would prevent them from having the vaccine. And finally, they need to take into account any sincerely held religious beliefs where a person because of religious reasons doesn't want to take the vaccine.
- Oh, I see so--
JIM BROWN: Other than that-- other than that, it's legal.
- Oh, I see.
JIM BROWN: Other than that, it's legal. But is it a good business decision? That that's what everyone's talking about, I think.
- I see. Because that was a question that I had is if you do have a religious concern, does that play a role? So that answers that question as well. You know, what about COVID testing once the workers go back? Is there any guidelines as to what employers need to provide as for testing, which is different certainly than a vaccine.
JIM BROWN: Well, certainly whatever the employers reopen their office, they still have to comply with what Cal/OSHA has done for the emergency standards for the COVID pandemic and for reopening. That's not mandating testing, but complying with all of the social distancing, the masking, and those types of workplace protections. If there is a certain level of COVID positives that are discerned in the workplace, then an employer is required to pay for testing for workers.
- Well, can I ask you this out of my own curiosity because I've heard this come up time and time again. If someone contracts COVID-19, presumably on the job, can the employer then be held accountable if there is no testing or vaccine requirement?
JIM BROWN: They certainly can. If the positive is something-- just got a telemarketer call. If it's presumed to be in the workplace, the employer is potentially going to face a worker's compensation claim. So absolutely that is a concern.
- Yeah. And speaking of the employees as well, if an employer asks for that employee to return to the office full-time, but maybe, you know, the employee is not comfortable going back, can that worker say, hey, this is within my rights to stay home or to continue this virtual workplace?
JIM BROWN: Now, from the letter of the law, if an employer has a policy requiring that folks return to work, then that's going to be an issue. But what most employers are doing is looking at the business realities. If you have a workforce that is very concerned about returning to work, you have issues with child care that didn't exist before COVID, you have issues with transportation to the office that didn't exist before COVID, those are realities that the employer is going to have to take into consideration. We are seeing a lot of employers who are doing surveys to identify a fear factor, if you will, about returning about returning to the office for practicalities such as the child care or the transportation to the office.
- Yeah. I think that's very fair. Fear factor is the way to describe it. People have that varying level of comfort when it comes to returning to the office. I'd like to wrap up by asking you about recovering from COVID-19 vaccine symptoms. Are there protections in place for workers who need to take some time off?
JIM BROWN: Oh, certainly. To the extent that somebody has a reaction to a COVID test or actually needs to take time off for the test itself, in either instance, there are sick leave obligations that an employer has to comply with that help protect the worker.
- By the way, I think you're on your virtual home studio. I think I saw a dog walk back in the background. Is that right?
JIM BROWN: That would be Hugo. He gets to be on TV if he want to.
- My dogs tend to jump up on my lap when I'm very engrossed in a Zoom with my employers. So I understand the feeling. All right. Well, Jim Brown. An employment and labor law attorney with Duane Morris LLP in San Francisco. Always a pleasure. Thank you so much for joining us.
JIM BROWN: Thank you. My pleasure.