As we continue to face the global coronavirus pandemic, many employers are wondering how they can better equip their staff and customers when it comes to staying protected. Has the time come for a nationwide vaccination program?
For advocates, vaccine mandates are the ideal way to protect as many people as possible until herd immunity is reached. For others, vaccine requirements to go about their normal day jobs are seen as an infringement on their personal rights.
New York was the first U.S. city to require proof of at least one dose for indoor dining, whereas a hospital system in Houston fired several employees who refused to comply with a vaccine mandate. The precedent is being set, but regardless of where you stand on the issue, there’s one question that has been raised from Sacramento to San Diego: Can employers require the COVID vaccine in California? Let’s take a look.
Is It Even Legal to Make Vaccination Mandatory?
With the news of President Biden mandating the vaccine for federal government workers and contractors at the federal level, many private employers in California are wondering where that leaves them. Can they mandate vaccines at the state level? Here’s the short answer: yes, it’s legal.
But as with anything in employment law that affects workers and their rights, there are plenty of obstacles and loopholes that employers must navigate.
According to the U.S. Equal Employment Opportunity Commission, or EEOC, there are currently no laws that stop businesses or even the government from making employee vaccinations mandatory. If an employee is coming into a shared worksite where social distancing may not be possible, an employer can request that they be vaccinated first.
In August, the California Department of Public Health issued a requirement for all healthcare workers to show proof of vaccination when entering their workplace. This was the first order of its kind in the country and is a strong indication that more employers—especially in California—might implement similar mandates now that the legal precedent has been set.
San Francisco and Pasadena had already announced vaccination requirements over the summer, while the University of California, including both the Cal Berkeley campus and UCLA in Los Angeles, also required that all students, faculty, and staff must be fully vaccinated to attend on-campus classes and meetings ahead of the start of the school year. California also recently became the first state to announce a COVID-19 vaccine requirement for in-person learning in the K-12 education system.
There’s some concern among employers that asking for the vaccination status of their employees violates HIPAA or other legal requirements around data protection. The EEOC has assured business owners that asking for proof of vaccination is within their rights, but requesting a reason for why someone is not vaccinated is not permissible—as that could potentially lead into conversations about health conditions or disabilities of employees.
With the Centers for Disease Control and Prevention (CDC), OSHA, and medical professionals around the country encouraging businesses to continue safety protocols for unvaccinated employees, asking for proof of vaccination is necessary in order to ensure that protocols are met. After all, they’re difficult to enforce if you don’t know who needs to follow them.
Are There Any Exemptions?
One of the key additions under both federal law and EEOC laws when it comes to asking for mandatory vaccination is that reasonable accommodations must be made for exempt employees. Although many businesses are now reopening, remote work options are one of the workarounds seen as reasonable accommodations for these employees. Generally speaking, it’s the employee’s responsibility to express their need for exemptions or accommodations and those are considered on a case-by-case basis by the HR team or a legal professional.
Most exemptions center on protected characteristics under federal laws like the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, meaning that staff in companies with more than 15 employees will not be required to have vaccinations if they have a disability-related or religious belief exemption that allows them to be unvaccinated. The California Fair Employment and Housing Act (FEHA) takes these federal anti-discrimination laws further and requires that employers with five or more employees provide accommodations for employees with disabilities, unless it presents an undue hardship to the business.
If you’re concerned that an employee may be showing COVID-19 symptoms, testing in-office may violate certain religious exemptions or create a possible conflict against held religious beliefs. In order to keep the rest of your team protected, the best course of action is to provide a means of access to free off-site testing for all employees and require a negative test before re-entry into the workplace. Mandating a vaccine can be a legal gray area, but testing requirements are perfectly acceptable reasonable accommodations.
What Can Employers Do to Protect Their Businesses?
For small businesses, dealing with exemptions may be easier than large corporations with hundreds or even thousands of employees. But regardless of how many staff you have, it’s important for employers to consider possible repercussions from making a company-wide vaccination policy.
1. Know Yours and Your Employees’ Legal Rights
Should an employee feel that they are a victim of discrimination, talking to HR is considered a protected activity under the Department of Fair Employment and Housing (DFEH) that prohibits employers from punishing the employee for sharing their concerns. And if an employee believes that reasonable accommodations are not being made for their specific situation, they could bring an ADA complaint that might be difficult to disprove.
Cal/OSHA’s emergency temporary standards do allow for fully vaccinated individuals to forgo testing before returning to work (provided that they have no symptoms of COVID-19), along with no longer requiring face coverings indoors. Vaccination status must be recorded for these individuals to comply with state regulations.
What to Do Next…
Be sure to familiarize yourself with any new updates from your state or local authorities regarding vaccination status requirements or changes to exemption rules. With case counts and hospitalization rates changing all the time, authorities may make decisions quickly or with very little notice to business owners. It’s your responsibility to be informed about the rights of both yourself and your employees.
2. Draft Clear Covid-19 Policies and Remain Consistent
As with most things in life, having clear and consistent guidelines and protocols makes any situation much easier. Having straightforward policies in place will allow your employees to feel comfortable and confident in making the best medical decisions for themselves that still adhere to the rules you’ve put in place for the company. Most companies struggle when exceptions are being made or protocols are unclear, so it’s in everyone’s best interest to keep your policies as clear as possible.
What to Do Next...
Seeking legal advice from a local law firm (especially one that’s familiar with all the local laws that your business is subject to) before working on a policy with your HR team will help to avoid unnecessary work. Advisors will also be aware of any EEO laws that could invalidate some of your plans for employees returning to work after recovering from COVID or traveling abroad. They can also assist with any disclaimers that you should make to exempt employees regarding their risk of contracting the virus if they choose to come into the workplace unvaccinated.
3. Address Employee Concerns about the Covid-19 Vaccine
There are a number of reasons why employees may be reluctant to get vaccinated. It’s important to provide them with updated guidance and FAQs from the Department of Public Health or a federal agency like the CDC without judgement or fear of retaliation.
Some may be concerned that transmission of the virus is possible from receiving the vaccine. According to the CDC, none of the authorized or recommended vaccines cause a positive test result. They also note that the vaccine cannot alter your DNA and is safe for pregnant or breastfeeding women.
After the Food and Drug Administration’s (FDA) official approval of the Pfizer vaccine, questions about the emergency use authorization of the vaccine should start to disappear, but it’s best to be informed yourself in case issues around this do come up.
What to Do Next...
Like with all medical information, it’s best to avoid these conversations with employees directly and refer them to the approved sources like https://www.cdc.gov/.
Working toward “Business as Usual”
Keeping up with federal and state guidelines can be a headache, but it’s part of being a business owner. Your employees are relying on you to be informed and knowledgeable so that you can provide a safe working environment for everyone.
Since this article deals with an ever-changing issue, be sure to contact a legal expert if you have any questions and to review your vaccination policy before putting it into place.
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