EMPLOYMENT LAW COVID-19 UPDATE
VACCINES & WORKPLACE PROTOCOL- WHAT’S NEW?
May 21, 2021
Pending California moving to full “reopening”, which is anticipated to be on or about June 15, 2021, many state, federal and local agencies have issued updated guidance, orders, recommendations, and fact sheets pertaining to masks mandates and vaccines in the workplace.
DFEH UPDATES GUIDANCE ON MANDATORY VACCINE POLICIES
On March 4, 2021, the Dept. of Fair Employment and Housing (DFEH) updated its guidance on the issue of vaccines which is summarized below. In brief, the update provides:
(a) Employers can require their employees to be vaccinated;
(b) Employers must seek to provide a reasonable accommodation to an employee with a disability or for an employee who has a sincerely held religious belief who objects to the COVID-19 vaccine;
(c) If an employee resists mandatory vaccination and does not have a disability or a sincerely held religious belief that precludes the employee from being vaccinated, an employer does not need to provide a reasonable accommodation;
(d) Employers may require some “proof” of vaccination if the employee obtains the vaccines from an entity other than the employer and any record of employee or applicant vaccination must be maintained as a confidential medical record.
More specifically, the updated FAQs are summarized below:
Question: May an employer require its employees to be vaccinated against COVID-19?
Short Answer: Yes. Under the 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.
Question: If an employer requires vaccination against COVID-19 in its workforce, must the employer reasonably accommodate employees with disabilities?
Answer: Yes. The FEHA requires employers to reasonably accommodate employees’ known disabilities. An employer must engage in the interactive process with, and reasonably accommodate, the employee with a disability-related reason for not being vaccinated, and the employer may not retaliate against an employee for requesting such an accommodation.
Among the accommodations to consider are whether the employee is able to work from home or whether reasonable procedures and safeguards could be put in place at the worksite that would enable to employee to work without endangering the employee or others.
Question: If an employer requires its employees to be vaccinated against COVID-19 and an employee objects to receiving a vaccination because they do not “trust that the vaccine is safe,” must the employer reasonably accommodate the employee?
Answer: If an employee does not have a disability reason or sincerely-held religious reason for not being vaccinated with an FDA-approved vaccine, the employer is not legally required by the FEHA to reasonably accommodate the employee.
Question: If an employer requires its employees to be vaccinated and an employee questions the wisdom of or resists the mandate (but does not request a reasonable accommodation related to their disability or religious creed), can the employer discipline the employee?
Answer: Employers are permitted to enforce reasonable disciplinary policies and practices but the FEHA prohibits employers from retaliating against any employee for engaging in protected activity…Employers may not discipline or otherwise retaliate against an employee because that individual has opposed practices prohibited by the FEHA.
For example, an employer may not retaliate against someone who alleges that the employer’s vaccination policy intentionally discriminates on the basis of race, national origin, or another protected characteristic, or has a disparate impact on a protected group.
Question: If an employer administers a COVID-19 vaccination program, may the employer ask employees for medical information relevant to vaccination?
Answer: Employers may generally ask their employees to answer questions regarding COVID-19, such as inquiring whether an employee entering a workplace is experiencing COVID-19 symptoms.
If an employer itself administers a vaccination program, the employer may seek to have employees answer certain questions that could elicit information about a disability—including questions on a pre-vaccination screening questionnaire—so long as the inquiry is “job-related and consistent with business necessity.” Any retained record of employee or applicant vaccination must be maintained as a confidential medical record.
Question: If an employer requires its employees to receive a vaccination against COVID-19 administered by a third-party, may the employer require an employee or applicant to submit “proof” of vaccination?
Answer: Yes. 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.
The full FAQ’s can be found here.
CHANGES TO CALIFORNIA DEPT. OF PUBLIC HEALTH & CAL OSHA
The following summarizes recent changes to the rules pertaining to protocol for fully vaccinated persons in the workplace:
- Fully vaccinated workers do not need to quarantine following a workplace exposure, as provided in the COVID-19 Emergency Temporary Standards (“COVID-19 ETS”) if they remain asymptomatic.
- Employers must continue to exclude fully vaccinated employees from the workplace if they (1) are COVID-19 cases (i.e., tested positive or were diagnosed with COVID-19) or (2) there has been a workplace exposure and they exhibit COVID-19 symptoms.
- Face coverings must still be worn by fully vaccinated employees to the same extent as non-vaccinated employees. And physical distancing must be maintained.
L.A. COUNTY DEPT. OF PUBLIC HEALTH STATEMENT ON FULLY VACCINATED PERSONS
The Los Angeles Public Health Department has stated the following:
- Employees in a fully vaccinated workplace may forego physical distancing but still wear face coverings; however, California is not in alignment with the physical distancing exception and until California conforms, physical distancing should be required;
- Proof of vaccination can be required.
- The following are acceptable as proof of full vaccination:
- Photo ID and the employee’s vaccination card (which includes the name of person vaccinated, the type of COVID-19 vaccine provided, and date last dose administered)
- a photo of the individual’s vaccination card as a separate document, OR
- a photo of the individual’s vaccine card stored on a phone or electronic device OR
- Documentation of full vaccination against COVID-19 from a health care provider (which document includes the name of the person vaccinated and confirms they are fully vaccinated for COVID-19).
- Employers in Los Angeles County need not keep a copy of the proof of full vaccination shown. However, because the State has not yet taken a position on this issue it would be prudent to keep a copy of the documentation provided by employees confidential, as with any other medical record.
- The COVID-19 Emergency Temporary Standards (ETS) must still be followed for fully vaccinated employees with the sole exception for quarantine noted above. This includes maintaining physical distancing in office workspaces. Following the Los Angeles County relaxed standards would violate the State’s COVID-19 ETS.
- Los Angeles County still takes the position that even if all employees are vaccinated, physical distancing must still be maintained for any employees who interact with visitors, such as delivery personnel, vendors, or customers.
- Communicate the policy to their employees;
- Determine how any requests for an exception will be handled,
- Establish a procedure to protect the medical privacy of the information obtained.
- Vaccination records need to be kept private, as employees have a right to privacy as to in their medical decisions, such as whether or not to become vaccinated, and their reasons for doing so.
CA DEPT OF PUBLIC HEALTH ISSUES NEW GUIDANCE FOR VACCINATED EMPLOYEES
On May 3, 2021, the California Department of Public Health issued new guidance for non-health care settings stating fully vaccinated people do not need to quarantine if they are asymptomatic. A summary of the update is below:
Who is considered a fully vaccinated person?
For the purposes of this guidance, people are considered fully vaccinated for COVID-19: two weeks or more after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or two weeks or more after they have received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen ).
Key Points For the Workplace
- Following a known exposure at work, fully vaccinated workers do not need to quarantine if asymptomatic.
- Employers subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) must ensure that employees are following the current ETS face covering and testing requirements.
- Employers should follow the exclusion provisions of the Cal/OSHA COVID-19 Emergency Temporary Standards if a fully vaccinated person tests positive for COVID-19.
- These recommendations apply to fully vaccinated people, and currently there is no duration limitation on these recommendations after individuals are fully vaccinated.
The Update can be found here.
CDC ISSUES INTERIM PUBLIC HEALTH RECOMMENDATIONS FOR FULLY VACCINATED PEOPLE
As of May 13, 2021 the CDC has updated their guidance as follows (but note, the CDC’s recommendations do not currently conform to the California position on these issues):
- Fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
- Fully vaccinated people can refrain from testing following a known exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter.
As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.