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North Bay employers worry about how to enforce new California rules that still require masks indoors

An about face by a state board after nine hours of turbulent debate may do little to give employers guidance on how to bring workers back into the workplace when a state mask mandate is removed June 15.

The California Occupational Safety and Health Standards Board board backed off of its decision earlier in the evening Thursday to OK new workplace standards

But when it learned doing so would leave older, more restrictive standards in play, it pivoted and adopted revised standards timed to be in place when Gov. Gavin Newsom lifts all mask and other restrictions in California on June 15. A committee was handed the task of creating other state mandates to go into effect after July.

“We’re going through all of this for just six weeks,” Spaulding, McCullough & Tansil employment law specialist Lisa Ann Hilario told the Business Journal on Friday. “This may lead some employers to not bring back their staffs until Aug. 1.

For now, companies will still need to have a COVID-19 safety plan in place, with policies that only allow vaccinated workers to remove their masks only if everyone in the room has received the shots.

“With this, we could have a ripple effect,” Hilario said. “Then, you’re pitting people against each other, and that leads to horrible morale.”

Employers will probably find it tough to meet the standards and avoid conflict among workers, because chances are they’ll have unvaccinated employees for various reasons. Some will decline the shot because of a disability, others have not had the opportunity to get one. Many have chosen not to, while a few cite religious beliefs.

“I have a client with 50 employees, and three are unvaccinated,” she said.

Herd immunity is the goal. Currently, the state reports about 38 million vaccines have been administered. In the meantime, company executives would need to ponder whether they want to risk losing good employees and even managers over these rules.

“This is why they’re punting this down the road,” she said.

Part of a perfect storm of events affecting the economy, the labor market is undergoing a massive shortage of workers.

“They’d better prepare to lose people. Are they really going to fire people over not getting vaccinated?” she said.

Current law states a company has the right to set its own vaccination policy. According to the California Department of Fair Employment and Housing, a company may require its employees get the vaccine so long as it doesn’t discriminate against one group.

Some employers are situated in a better standing than others.

Amy’s Kitchen spokeswoman Jennifer Tucci said the food service company stands at a 94% rate of vaccination among its employees, which will allow it to fare better when it defines how the administrative staff returns.

“We feel good about it,” she said.

The progressive Petaluma-based company set up a vaccination site on company grounds to reach as many of its more than 2,400 employees as possible.

“We have not made vaccinations mandatory for our employees, but we attribute a high vaccination rate to thorough internal education about vaccination safety and effectiveness and by making the vaccine as convenient as possible for our employees,” Chief People Officer Mike Resch told the Business Journal.

Getting vaccinated is still more popular than not.

Robert Half Employment Agency surveyed more than 2,800 U.S. workers this past spring to find out how they feel about returning to the office and to hear their concerns.

The recruitment firm discovered that 52% think employers should require staff to be vaccinated in order to work onsite. In addition, 53% of these workers said they prefer colleagues wear masks, with the same margin adding they’re uncomfortable sharing workstations.

“There’s no one-size-fits-all approach when it comes to office re-entry plans. Each situation is unique and requires careful consideration,” said Sarah Cush, the staffing company’s jobs expert.

With a hard-hit membership still reeling over government shutdowns, the California Restaurant Association remains in opposition to the new rules and takes issue with mask-wearing despite full vaccination.

“The revised ETS continues to require face masks in the workplace in conflict with the governor’s re-opening of the state on June 15 and CDC guidance,” Senior Legislative Director Katie Hansen said. “Restaurant workers have done everything asked of them over the last 15 months, but they will struggle to support a policy that dramatically extends pandemic restrictions for them — especially when they don’t have wear a face mask as a customer dining inside a restaurant on their own time.”

State receives earful on proposal

Cal/OSHA’s marathon virtual session sounded more like a day’s work on a company’s complaint line Thursday than a regulatory meeting.

By an overwhelming margin out of the 104 callers, Cal/OSHA got an earful of disdain and criticism from commenters. Many of these callers strongly opposed the revised pandemic rules that also laid out the process associated with infections, ventilation, testing and legal paid time for employees as they return to work.

“We anticipate pushback,” Personnel Perspectives Managing Partner Karen Alary told the Business Journal before the hearing.

The recruitment agency has received a number of calls from the business community about its liability and duties. At this point, most of her North Bay clients are leaning toward not requiring vaccinations among employees returning to work.

“Employers are trying so hard to do the right thing for everybody,” she said.

Employer groups of all types came out in full force for Cal/OSHA’s controversial meeting. Concerns were brought up within a variety of industries and citizens ranging from the severe financial, tedious burden on companies to track outbreaks and stockpile masks and respiratory devices to their staffers to the possibility of discrimination toward the unvaccinated and government distrust. One caller repeated the word “hoax” in addressing the coronavirus outbreak.

“Businesses should not be compelled to tract vaccination status,” said Helen Cleary with the Phylmar Regulatory Roundtable, a business coalition.

Cleary, whose comments cited by other callers in agreement, referred to such a set of strict rules as a “waste of time” and represents “the wrong direction” for the state to take.

During the call, the state’s big guns of industry showed up with opposition to the proposed rules, including the Motion Picture Association of America, California Farm Bureau, California Restaurant Association, Associated General Contractors and multiple chambers of commerce who signed up to address the board before the vote.

“I think we need to go back to the drawing board,” California Farm Bureau spokesman Brian Little said, further suggesting the state adopt rules that abide by federal guidelines set by the U.S. Centers for Disease Control and Prevention.

Rob Moutrie, a policy advocate with the California Chamber of Commerce, agreed with a sentiment, while adding another concern.

“There’s no incentive for unvaccinated workers to get vaccinated,” he said.

And how do you track those who are or aren’t vaccinated employees from other companies like subcontractors access your jobsite?

“How do I manage sub contractors?” Association of General Contractors Safety Manager Brian Mello asked, while asking for more clarification.

The added stress on the business community came up over and over again.

If workers need to be transported, employers are urged to break up their staffers into groups sharing vehicles.

The prospect of clustering people in groups prompted an outcry from civil liberty groups and individuals who declare the new rules will heighten the divisiveness seen across the nation and state.

“The problem is we’re creating two classes of employees,” citizen Kenneth Davidson said.

Limited support to the state

Cal/OSHA did receive a few endorsements from mainly workers and school district unions, which came out in favor of continued mask, vaccine, disinfection and record-keeping rules.

“We need to make sure we don’t have continuous transmission of COVID at the workplace,” said Maggie Robbins of Worksafe in Oakland, an employee safety advocacy organization.

Robbins’ comments in favor of continuing and enhancing workplace rules were few and far between but brought home the main reason for evaluating new rules as the state tries to break free from a prolonged pandemic.

For instance, California School Employees Association Deputy Chief Counsel Dave Barber summed up the need for continued rules since vaccination rates are far short of the percentages necessary for herd immunity.

“We need science-based safety standards. No one under 12 can be vaccinated,” Barber said. “The pandemic is not over.”

State takes upper hand

The U.S. Equal Employment Opportunity Commission recently announced it is not taking a position on telling companies to require vaccinations from their employees.

Fed OSHA guidelines state:  “OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination and also does not wish to disincentivize employers’ vaccination efforts.”

Stakeholders across the North Bay are paying attention to what the state comes up with, including whether it dips its toe into urging companies mandate vaccinations among their workers.

“Employers can mandate vaccinations, but they’d have to carve out exceptions. To me, the best solution instead of a mandate would be to follow the CDC recommendations and eventually California may follow,” Sonoma County attorney Elizabeth Fritzinger told the Business Journal this week. “It won’t be easy.”

Indeed, the Cal/OSHA found that out with differing opinions from the public and its own board members Thursday.

“We can’t continue to live with the risk,” Cal/OSHA board member Chris Laszcz said at the start of board discussion in her leaning against the new rules.

She expressed the concern of companies stockpiling N95 masks causing a shortage heading into a worrisome fire year in the state.

“I think we need to take a deep breath and decide what to do next year,” she said.

That change could come as soon as summer.

“Because of these precautions, we are where we are. This is not perfect, but this is a step in the right direction,” board Chairman David Thomas said. “We’re not done.”

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