COVID Vaccine and Testing FAQ’s

Recently in the news, President Biden announced the requirement of mandatory vaccinations or testing for private employers with 100 or more employees. Some employers under 100 still want to implement these requirements. Most have expressed they want to do it to keep their employees and customers safe.

There are many questions from employers on what to do. The most popular questions we have received recently include:

• “If I require an employee to go get a COVID test, or to be vaccinated, who pays the costs of testing or vaccination?

• Do I have to pay the employee for the time it takes?

• Do I have to accommodate employees with a disability or religious belief that prevent them from getting the vaccine?

Fortunately, California’s Labor Commissioner has weighed in on who pays for the cost of COVID testing and vaccination, and whether wages and expenses are owed to the employee.

Cost of Testing or Vaccination

If an employer requires an employee to obtain a COVID test or a vaccination, then the employer must pay for any costs incurred by the employee for the test or vaccination. This is because California law requires employers to reimburse employees for all necessary business expenses (Labor Code Section 2802).

If the employer has not designated a specific testing or vaccination site, workers may ask which location(s) or vendor(s) are acceptable to the employer to avoid disputes over cost.

Wages

If the employer requires an employee to obtain a COVID test or vaccination, then the Labor Commissioner requires the employer to pay for the time it takes for the testing or vaccination, including travel time and time spent waiting for the test or vaccination to be performed.

Wages are due because the time spent, including traveling and waiting, is time during which the worker is subject to the control of the employer and is considered “hours worked.” An employee who goes for a test or vaccination outside of their regular working hours could also be entitled to overtime pay if the time spent puts the worker over eight hours in a day or 40 in a week.

An employer may not require an employee to use paid leave time (such as COVID-19 Supplemental Paid Sick Leave or California Paid Sick Leave) for an employer-mandated COVID test or vaccination.

Please note, time spent after COVID testing while waiting for test results does not need to be paid as hours worked. However, the worker may be able to utilize paid leave while waiting for the results.

Travel Expenses

If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employee also may be entitled to reimbursement for necessary expenses incurred to travel to and from the testing or vaccination location.

Disability or Religious Accommodations

Although both the US Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing have stated that private employers may implement a mandatory vaccine policy, employers must also be aware of accommodation requests that may arise related to an employee’s disability or sincerely held religious beliefs.

For many employers, disability accommodation is something we are familiar with — an employee requests an accommodation, the employer requests a medical certification and then the employee and employer try to find a reasonable accommodation. This is known as the interactive process. Mandatory vaccination policies don’t change this process.

Conversely, many employers may have little to no experience with religious accommodations. Unlike disability accommodations, employers generally may not ask for documentation to substantiate the need for the religious accommodation. Because the law takes a broad view of religious accommodations, employers are usually required to take the employee’s beliefs at face value.

Once an employer knows the employee has a protected disability or religious belief, both the EEOC and the DFEH instruct employers to engage in a good faith interactive process to determine if there’s a reasonable accommodation for the employee’s inability to receive the vaccine; this must be done before the employer makes any decisions regarding that individual’s employment.

While the EEOC identifies several potential accommodations that may be reasonable — wearing masks, adjusting shift schedules, teleworking and reassignment — whether an accommodation is reasonable and doesn’t constitute undue hardship, such as compromising the health and safety of the workforce, requires a case-by-case analysis. We recommend you seek legal counsel if you get to this point.

Summary

We hope you have found this article helpful and timely with the ever changing environment of COVID vaccines and testing. We know many questions come up for or clients and we are here to help. Many situations that arise with an employee are unique. If you need more custom guidance please feel free to reach out directly to us here at Platinum HR Consulting Group.

www.platinumhrcg.com 657-888-3648 lisa@platinumhrcg.com

Employer's Guide to A Remote Worksite

Pat yourself on the back, you have been running a small business, during a pandemic for almost a year now. Remaining aware and compliant with the vast amount of changes in workplace laws and regulations due to employees being remote has been challenging and confusing at times. Never before have we seen such a shift from on-site work to remote work, these tremendous changes bring various challenges for employers to remain compliant and safe from litigation. We have rounded up the top issues employers are faced with when running a remote workplace.

Harassment and Discrimination

Working remotely does not prevent employees from being harassed or discriminated against during their workday. Employers still have an obligation to protect their employees against harassment and discrimination while they carry out their job duties for their employer from their new workplace; home. Employees can be subject to harassment and discrimination while working remotely on virtual meetings or through text or messaging applications. The nature of these means of communication can promote casual behavior where employees may find it tempting to drop their professionalism. Employers should communicate clearly what behavior is prohibited and encourage employees to report any inappropriate behavior to HR for investigation.

Employers should also remember California requires all staff receive Sexual Harassment training every other year. New employees need trained within 6 months and temporary employees need trained within 30 days. Platinum HR offers this training online at a low cost.

Wage & Hour Issues

Working remotely as an hourly employee can be very challenging at times, but even more challenging for the payroll department. First, ensure your employees are properly classified as exempt or non-exempt depending on the job duties they engage in being remote. Ensure all employees that are non-exempt are following the labor laws set forth by their state or local region. Some employers allow their employees to work from anywhere – any state. Ensure they update their address in your payroll system to allow for proper taxation and wage and hour compliance. Correctly recording when employees are on the clock versus off the clock will be a challenge. Ensure employees are properly trained on the policies and processes put in place to correctly record these times and follow up to see these are being followed. Ensure you have solid policies for working off the clock and timekeeping.

Give us a call if your timekeeping policies need to be updated to remain compliant with remote work.

Home Office Expenses

Yes, you need to pay for your employee’s internet, not all of it though. Employers are expected to cover the necessary costs associated with carrying out the employee’s job duties. Could the employee do their job without the internet? If the answer is no, then the employer needs to cover a reasonable portion of the employee’s home office costs. A taxable home office stipend per month to cover the internet, power, desk supplies, etc is an easy way to remain compliant in this area. Be sure to have a solid policy that backs this up and outlines how it is administered and to be used.

Workplace Safety

Employers are still liable for their employees getting injured while working, even at home during a remote workday. Communicating to your employees what a proper workspace looks like, with proper ergonomics is a good start. If employees are modeling improper ergonomics on video conference meetings, let them know how they can fix this and better yet – send them the proper set up they might need. Be familiar with what is considered a workplace injury and the necessary steps to take to handle these claims if they arise.

Build a Little Culture

Working remotely can cause teams to start working in silos or feel isolated and disconnected from one another. Without the organic hallway conversations and collaborative lunches we once enjoyed while working onsite, employees working remotely can feel isolated quickly. Providing employees with breaks to chat with each other or collaborate with one another can help break down these remote workplace barriers and give employees an opportunity to collaborate with one another outside of their functional teams. Building in thirty minutes for your team to attend luncheons, trivia games, happy hours or scavenger hunts can help break up the day and give employees a chance to relax with one another.

It is a good time to update your employee handbook to reflect the cultural and legal changes that have changed the workplace over the last year.