Enforcing COVID-19 Workplace Safety Rules May Present Unexpected Challenges
As employees return to work, California employers will face a wide range of COVID-19 related workplace issues born out of their efforts to keep employees safe and healthy. Just as with all other workplace safety rules, employers should clearly communicate COVID-19 workplace safety rules and procedures to their workforce. Employers should also clearly communicate the expectation that all employees comply and the consequences for failing to do so. When implementing new policies, employers should remind employees that the purpose of the new policies is to protect everyone in the workplace and that employees will be updated when/if policies change. Undoubtedly there will be some employees who either refuse to comply outright or are inconsistent in their compliance efforts.
Generally, employment can be terminated for refusing to comply with an employer’s policies. That said, the question during these unprecedented times is “Should employment be terminated if an employee refuses to comply with COVID-19 workplace safety rules?” The answer must be navigated on a case-by-case basis.
As a threshold consideration, employers should always be even-handed in how they enforce company policies. Any new rules should be enforced in the same manner as all other workplace safety rules. In other words, if an employer pre-COVID-19 did not terminate employment for a first offense, then it should not necessarily change that practice now. Evidence that an employer deviated from how it typically enforces its own policies is commonly relied upon by plaintiffs’ practitioners to support employment-related claims like wrongful termination, retaliation, and discrimination. Given the increase in employment-related claims that is anticipated in the wake of the COVID-19 pandemic, employers should maintain consistent enforcement of COVID-19 workplace safety rules and procedures to avoid the appearance that anyone was singled out and suffered employment actions that were motivated by improper bias rather than legitimate business reasons.
Unfortunately, there is not a one size fits all approach to the COVID-19 workplace terrain. Additionally, the inconsistencies in state and local health orders with respect to COVID-19 general safety rules complicates the burden of enforcing workplace safety rules, which may be more protective than the general local rules or the industry-specific state rules and guidance. Accordingly, employers should not be quick to terminate employment if an employee refuses to comply.
Moreover, there may be legitimate reasons for an employee’s refusal to comply. For example, if an employer requires employees to wear face coverings (whether in compliance with a local order or not) and an employee reports that he/she has a disability that prevents the employee from wearing a face covering, the employer may have a duty to reasonably accommodate. Such an accommodation may be to allow an exception from the face mask requirement. Importantly, employers may also have a duty to accommodate employees who cannot wear certain protective equipment (e.g. latex gloves) by providing different, and possibly more expensive alternatives. This added consideration increases the land mines that await California employers as they reopen for business.
Employers should be mindful of EEOC guidelines as well as state and local health orders, when drafting COVID-19 workplace safety rules to ensure consistency. Some counties require face coverings be worn in all workplaces, while other counties do not at this time. The state COVID-19 Industry Guidance page sets forth individual control measures, found here, which provide detailed guidance for employers in 20 industries (including retail, logistics, and office settings). Not surprisingly, state guidance strongly recommends that employees wear face coverings if they cannot maintain social distancing and, of course, maintain physical distancing. However, the face covering guidance has been notably inconsistent throughout the pendency of the health emergency, and employers should monitor continued changes that may affect workplace safety protocols.
For more information refer to our Return to Work COVID-19 page found here.