If there’s one thing that every employer in California should know by now, it’s that California labor and employment laws are constantly changing, and that employers must regularly adjust their policies and practices in order to stay compliant. Enter a global pandemic, which ushered in a patchwork of ordinances, statutes, and regulatory guidance that challenged even the most sophisticated employers to stay abreast of changes.
However, in light of recent updates from the Center for Disease Control (CDC) and California Department of Public Health (CDPH), in addition to a growing population of vaccinated individuals and widely-available COVID-19 vaccinations, California employers may be at the precipice of a new, less dynamic, normal.
On June 17, 2021, the California Occupational Safety and Health Standards Board (Cal/OSHA) enacted revised COVID-19 workplace regulations to reflect CDC and CDPH guidance in areas such as masking, social distancing, and outbreak protocols. Upon the Board’s decision to adopt these changes, Governor Newsom signed Executive Order N-09-21, which put those standards immediately into effect. While of course these regulations could change at any moment, it appears that they will likely be here to stay.
Most significantly, these regulations delineate between vaccinated and unvaccinated employees in terms of what workplace safety precautions are required. As such, it’s imperative that private California employers understand what they can and cannot ask and require from their employees in this regard.
Can I require my employees to vaccinate?
This is one of the most popular questions employers are asking, and the short answer is yes, employers can require their employees to vaccinate, with exceptions.
While individuals may decide for themselves whether to vaccinate, employers generally require employee vaccinations to ensure a safe working environment for their other employees and customers. Along the same vein of businesses refusing service to customers who are not wearing proper attire (“no shirt, no shoes, no service”), employers may extend these types of requirements to employees and vaccinations. Essentially, no vaccination, no employment. But of course, there are always exceptions.
The California Department of Fair Employment and Housing (DFEH) and federal Equal Employment Opportunity Commission (EEOC) have indicated that employers may require employees to receive a COVID-19 vaccination, as long as the employer does not discriminate, retaliate against, or harass employees in violation of the California Department of Fair Employment and Housing or the federal Americans with Disabilities Act. If an employee is disabled or holds a sincerely held religious belief, either of which prevents them from vaccination, employers must engage in an interactive process and reasonably accommodate such employees. In such a scenario, the likely accommodation would be excusing the employee from a mandatory vaccination policy.
Can I ask about my employees’ vaccination status?
Because masking in the workplace and numerous other Cal/OSHA COVID-19 regulations are dictated by vaccination status, employers arguably must ask about their employees’ vaccination status. As a refresher with respect to masks, employers may allow persons who are fully vaccinated to forgo a facial covering. But a person is not considered “fully vaccinated” unless the employer has documentation of their vaccination status. An employer must document that status using one of the three methods below:
1) maintaining proof of the employee’s vaccination;
2) creating a record of employees who have presented proof of vaccination; or
3) creating a record of employees who have self-attested to their vaccination status.
Employees who decline to answer regarding their status must be treated as unvaccinated for purposes of the Cal/OSHA regulations. Regardless of the approach, the documented information should be treated as a confidential medical record stored separately from the employee’s personnel file.
Can I require my employees to return to the workplace?
Another common question employers are asking is whether they can require employees who have been working remotely to return to the office. Again, the short is yes, with exceptions.
Many employers may determine that the most efficient way to run their organization is with employees physically present onsite, and as such, may conclude that bringing employees back to the workplace is in the company’s best interest.
However, similar to requiring employees to vaccinate, mandating employees to return to the workplace could still implicate the same FEHA and ADA concerns discussed above. However, employers should typically be able to determine whether there is a reasonable accommodation that would permit the employee to come to the workplace, such as keeping that individual separated in the office to ensure that employee’s safety or continuing to allow a person to work from home, despite requiring others to return to the office.
If an employee refuses to vaccinate, what should I do?
To reiterate, if the employee is unable to vaccinate due to a disability or religious belief, the employer must accommodate that employee. However, if the employee’s reasoning for not vaccinating is not based on disability or religion, the employer may subject that employee to discipline up to termination as long as that result is consistent with the employer’s practices and policies. Ultimately, employers should first ensure that they are following their own policies and second that they are treating similarly situated employees consistently and in the same manner. For example, if both Joe and Jane employees who refuse to vaccinate, and neither fall under any FEHA or ADA exception, the employer should not treat Joe different from Jane or vice-versa by terminating one, but retaining the other, because of their refusal to vaccinate.
Additional Helpful Information
Employers should also recognize that local regulations and specific industry standards may require an employer to undergo additional, more intensive procedures than those addressed in this article. Additionally, because the circumstances of each employment situation will likely differ, it is always a best practice to seek guidance from counsel when these and similar questions arise, particularly where an employee is in need of accommodation.
For further reference or continued guidance on any COVID-19 related questions employers may have, we recommend looking to the DFEH, Cal/OSHA, DIR, and LWDA FAQ sections, and communicating with employment counsel regarding specific questions as they arise.