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California employers who are considering implementing policies for employee vaccinations in their workplaces face uncertainty. They are rightly confused for a number of reasons, including a regulatory landscape that remains muddled with respect to the parameters of what employers can or should do with respect to establishing appropriate vaccination policies in their specific workplaces. Employers lack clear guidance, which means in the short term companies will face uncertainty in making crucial decisions for operating with appropriate levels of safety to protect their employees, customers, clients, and vendors.
The current COVID-19 pandemic is an evolving situation. Governmental and private actors continue to assess the impact of the pandemic on businesses and others, and new programs (or changes to existing ones) continue to develop. Stay tuned to reliable sources for updates.
Vaccines are available in a limited supply, so not everyone will be able to get vaccinated right away. With the addition of a third vaccine option (Johnson & Johnson) and increased delivery of the Pfizer and Moderna vaccines, we expect vaccines to (hopefully) become more readily available in the coming months.
An irony is that while some of us are clamoring to be vaccinated, including “jumping the lines”, “chasing” vaccinations and the like, others of us are strongly opposed to being vaccinated for any number of reasons – personal, medical, religious, and [unfortunately] “political.” This has resulted in a number of Public Service Announcements, including those from most of our former living Presidents, government officials at all areas of government, and medical providers encouraging vaccination naysayers or those simply “on the fence” (with apologies to Lin Manual Miranda and the musical Hamilton) of “not throwing away my shot.” A group of doctors in Northern California has remixed the “Not Throwing Away My Shot” song from the Hamilton musical to encourage getting the vaccinations.
This puts employers into even a more precarious situation, since they may feel that they are “stuck between a rock and hard place” in attempting to come up with workplace appropriate policies. Since one size does not fit all, this will continue to challenge employers.
In California, getting vaccinated varies from county to county. We are being asked to “voluntarily comply” and “wait our turn” to get vaccinated. Californians can find out if they are eligible here or by checking their county’s public health website. We can also consult the state’s table that outlines eligibility here.
So what are employers to do in dealing with such uncertainty? Below are some questions and answers for employers to consider with respect to decisions regarding implementing their vaccination policies.
- Anticipate a range of employee objections and concerns:
- Health/disability concerns
- Religious objections that are “sincerely held”
- Concerns about possible safety issues/rushed development (see below discussion of making the vaccinations compulsory or mandatory)
- Engage unions early to seek buy-in
- Conduct education campaigns
- Strategize regarding the company’s records-keeping plan
- Incentivizing and encouraging employees to get vaccinated, including offering employees:
- Paid time off to get the vaccine
- Offering bonuses, gift cards, etc.
- BUT companies lack clear guidance on what incentives are “permissible”:
On February 1, 2021, a letter was sent to the Equal Employment Opportunity Commission (EEOC) Chair Charlotte Burrows signed by 40 business groups including the U.S. Chamber of Commerce, the International Franchise Association, and the National Restaurant Association, who stated: “Legal uncertainty about providing such incentives, however, has many employers concerned over liability and has made them hesitant to act…” The letter urged: “To ensure the guidance is as effective and efficient as possible, we also encourage the EEOC to define what qualifies as a permissible incentive as broadly as possible.”
The back story is that the EEOC, prior to President Biden taking office, had proposed wellness plan regulations that would have required an employer to provide only minimal or de minimis incentives for employees to participate in a wellness plan- impacting employer incentivizing employees to get vaccinated. President Biden directed all federal agencies, including EEOC to hold off on finalizing regulations. The EEOC website states “The next steps for each rule are under consideration.” So for now, uncertainty continues with respect to incentive programs encouraging employees to get vaccinated.
- Considerations for Imposing Covid-19 Vaccine Mandates:
- Since the vaccines have only Emergency Use Authorizations (“EUA”) patients (which for purposes of this discussion are the “employees”) must be given a choice as to whether to take a vaccine with “only” EUA.
- Because of EUAs, at this point employers may not be able to “force” employees to get vaccinated – for example even for “front-facing” health care workers, most employers have not forced employees to get vaccinated – since taking the vaccination carries some unknown amount of risk.
- These vaccines are not like taking the flu or measles shot with a long track record – which health care providers generally can make mandatory or compulsory for employees to get as a condition of their continued employment.
- Exceptions for workers with disabilities or “sincerely held” religious beliefs
- Your current written policies regarding other vaccinations
- The industry standard for your business regarding vaccinations
- Potential exposure to high-risk individuals through their job duties
- Work-from-home accommodations for employees who refuse to or cannot get the vaccine
- Incentives to encourage vaccinations
- Requiring face masks for those who refuse to or cannot get the vaccine
- The Center for Disease Control recommends wearing face masks even if you are fully vaccinated
- NEW March 8: CDC guidance now says that in non-healthcare settings fully vaccinated people can now:
- Visit with other fully vaccinated people indoors without wearing masks or physical distancing
- Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing
- Refrain from quarantine and testing following a known exposure if asymptomatic
- When will companies who have 100% immunizations of their entire workforce be able to stop wearing masks or following other COVID-19 safety protocols?
- Stay tuned – we are not close to being there yet; and there are still considerations for company customers, clients, and vendors who may enter company workplaces.
- Covering the costs of the vaccines
- The Fair Labor Standards Act and the California Labor Code requires employers to reimburse employees for their reasonable business-related expenses (which would include vaccines if employers “require” or “urge” employees to get vaccinated)
- What is the cost for vaccines and who should pay?
- Employers should make COVID-19 vaccines available at no cost to eligible employees (per OSHA guidance as of January 21, 2021, and Cal/OSHA, the Fair Labor Standards Act, the California Labor Code, and other regulatory guidance and requirements.)
- What is the updated CDC guidance?
- CDC guidance is constantly evolving and should be referred to frequently
- What are the related and new legislation regarding vaccines?
- Employers must continue to monitor developments at the federal, state, and local (counties and cities) levels – changes are constant and the situation remains fluid
- What are the CAL/OSHA requirements?
- CAL/OSHA has implemented many COVID-19 “Emergency Temporary Standards” (“ETS”), including having a site-specific written COVID-19 Prevention Program (“CPP”). CAL/OSHA has long required employers to have a written Injury and Illness Prevention Plan (IIPP) which now must include the CPP.
- CAL/OSHA’s new emergency regulations do not mandate vaccinations.
- However, if an employee does not take sufficient steps to address the virus, the employer could be cited by OSHA or Cal/OSHA.
- It is expected that CAL/OSHA will be updating their ETS, so recommended that CAL/OSHA’s website be checked frequently for updates.
- Will the employer elect to require vaccines?
- As discussed, this remains a moving target, particularly so long as the vaccines have “only” EUAs
- Employers may face the same issues when/if vaccine “booster shots” are developed and available to deal with the emerging medical concerns regarding the so-called “variants.”
- What will be the impact of the vaccine on extant safety measures?
- Federal, state, and local laws have long-mandated that employers maintain workplace-specific “safe” workplaces for their employees. COVID-19 issues are now a crucial part of maintaining workplace safety, and workplace/occupation-specific vaccination strategies implemented by companies can meet the letter and the intent of maintaining safe workplaces.
Q: May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?
No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard under the ADA).
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.