HR Headaches – Cozen O'Connor

COVID-19 Vaccination Policies for California Employers – Navigating Uncertainty

  • C. Edward Langhammer, Jr.

    • Jump to a topic:

    1. Healthy Workplace Strategies
    2. Employer Considerations
    3. Questions that Employers should Expect
    4. ADA and Title VII of the Civil Rights Act of 1964

    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.  

    Q: What are some healthy workplace strategies for employers to consider?

    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.

    Q: What are some considerations for employers related to establishing appropriate policies for employee vaccinations in their workplaces?

    Q: What are some questions (with some answers) that Employers should expect?

    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.

    About The Author
    Exit mobile version