In light of the spread of the highly contagious Delta variant, many employers have recently made the decision to mandate COVID-19 vaccines for their employees. Disney, Uber, Microsoft, and Walmart are some of the larger employers that are requiring all or some of their employees to be vaccinated in order to return to the workplace.
Federal and California law make it clear that employers can mandate employees to be vaccinated. California’s Department of Fair Employment and Housing (DFEH) issued guidance that permits California employers to require employees to be vaccinated.
Under California’s Fair Employment and Housing Act (FEHA), an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).
There are many considerations California employers need to make before implementing a mandatory vaccination policy, including the following:
1. Determine if the mandatory vaccination policy applies to all employees.
Employers must decide if all employees will be required to obtain the vaccination, or if the requirement will apply only to certain employees. For example, Microsoft recently announced that employees who wish to return to the office must have the vaccination. Walmart is requiring its corporate staff members and regional managers to be fully vaccinated by Oct. 4, and is offering all other employees a $150 incentive to obtain the vaccine, according to The Washington Post. Employers must be careful in designating who will and who won’t be required to be vaccinated to avoid any potential discrimination or disparate treatment claims.
2. Determine when employees are entitled to be paid for time taken to receive the vaccine or to recover from side effects from receiving the vaccine and expenses.
Employers must review federal, state, and local laws regarding any requirements to pay employees for the time (and expenses, such as mileage) involved to get vaccinated. There is a patchwork of laws that employers must navigate in California that apply to employee compensation in this regard:
- Employers’ voluntary compliance with the Families First Coronavirus Response Act through Sept. 30, 2021.
- California Supplemental Paid Sick Leave (Jan. 1, 2021 through Sept. 30, 2021). Under the California SPSL, employers must pay employees for a qualifying leave dating back to Jan. 1, 2021 “upon the oral or written request of the covered employee to the employer.”
California employers must also review local requirements to pay for employees’ time to receive the vaccine and to recover from any side effects. For example, Los Angeles area employers must comply with:
- Los Angeles County Employee Paid Leave for Expanded Vaccine Access (Jan. 1, 2021 through Aug. 31, 2021).
- City of Los Angeles vaccine paid sick leave (Jan. 1, 2021 through Sept. 30, 2021).
3. Review and set up process to provide reasonable accommodations to employees.
California’s FEHA applies to employers with 5 or more employees. It requires employers to reasonably accommodate employees with a disability unless the accommodation presents an undue hardship after engaging in the interactive process with the employee. While the interactive process does not have to be recorded in writing, it is a best practice for employers to develop a set of forms that ask the employee about the accommodation that is being sought, the employer’s response to the accommodation request, and the process that the company will take to evaluate all accommodation requests.
4. Determine what type of proof of vaccination the company will require.
According to the U.S. Equal Employment Opportunity Commission, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry. According to California’s DFEH, employers may ask the employee for “proof” of the vaccination. Because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.
Cal/OSHA’s revised COVID-19 prevention emergency temporary standards (ETS) permit employers to document employees’ vaccination status but do not set forth how employers are supposed to document vaccination status and what steps must be taken to document status. Cal/OSHA’s FAQs provide that the following are acceptable options to document employees’ vaccination status:
- Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and employer maintains a copy.
- Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
- Employees self-attest to vaccination status and employer maintains a record of who self-attests.
5. Develop protocols on how proof of vaccination will be kept and who within the company will have access to the confidential information.
Since people who have received the vaccine are given a card, it would be reasonable to ask for proof via this card. However, employers should not ask intrusive follow-up questions such as the reasons why the employee is not getting vaccinated since these questions may be considered disability-related and accordingly trigger ADA protections. Employers should also request that employees provide them no more information than necessary as proof of vaccination in order to avoid violations of other disability laws.
6. Set forth policies and training for employees explaining that vaccinated employees need to still abide by social distancing protocols.
Employers must still abide by federal, state, and local guidelines for the workplace. Employers need to maintain compliance with these regulations, and can impose additional requirements on their workforces to prevent the spread of COVID-19 in the workplace. Employees who have been vaccinated are not exempt from these requirements.
The Centers for Disease Control and Prevention have also cautioned individuals who have received the vaccine against attending social gatherings if they have symptoms.
7. Set forth COVID-19 testing requirements and explain that vaccinated employees may be subject to testing requirements in the future.
Nothing prevents employers from requiring COVID-19 tests for their employees, even if they have been vaccinated. Employers should develop a plan for under which circumstances they would require employees to be tested. Employers should also review their testing requirements during outbreaks under Cal/OSHA’s revised ETS.
Anthony Zaller is an employment litigation attorney and founding partner of the Zaller Law Group, PC. His focus is on helping businesses and entrepreneurs navigate California’s complex employment and business laws. He defends wage and hour class actions for claims of unpaid wages, missed breaks, unpaid overtime, unreimbursed business expenses, and Private Attorney Generals Act (“PAGA”) representative actions, among other issues. Anthony has also successfully defended many single plaintiff employment cases including claims of wage and hour violations, wrongful termination, and sexual harassment. Anthony defends employers in courts throughout California, in Labor Commission hearings, and assisting employers in employment audits involving the Department of Labor, Department of Fair Employment and Housing, EDD, OSHA, and Cal/OSHA. He routinely educates employers about California law through speeches and weekly articles at www.CaliforniaEmploymentLawReport.com.
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