With California reopening, many Californians will be heading back to the workplace soon and are wondering if employers may require their employees to get vaccinated. According to the Fair Employment and Housing Act (“FEHA”), an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer (a) does not discriminate against nor harass employees on the basis of a protected characteristic, (b) provides reasonable accommodations related to disability or sincerely-held religious beliefs, and (c) does not retaliate against anyone for engaging in protected activity.
On June 15, 2021, California lifted its mask mandate across the state. The California Department of Public Health (“CDPH”) updated its guidance for the use of face coverings stating that masks are no longer required for fully vaccinated individuals. However, masks are still required on public transit, indoors in k-12 schools, childcare, other youth settings, healthcare settings, long-term care facilities, correctional and detention facilities, and homeless shelters.
The Standards Board (“Cal/OSHA Board”) adopted a revised COVID-19 Prevention Emergency Temporary Standards (“ETS”), providing guidance to employees and employers in the workplace. On June 17, 2021, Governor Gavin Newsom signed an executive order putting the ETS into effect immediately, bypassing the normal 10-day review period by the Office of Administrative Law.
Some critical changes in the ETS include fully vaccinated employees not needing to wear face coverings except in certain situations during outbreaks or in settings where CDPH requires all persons to wear them. Additionally, physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors. The ETS Frequently Asked Questions (“FAQs”) explains that employers can either accept verbal self-attestation, proof of vaccination card, or other written proof to document their employees’ vaccination status. The FAQs also clarify that an employer may still require an employee to wear a face-covering at work even if they provide documentation verifying that they are fully vaccinated.
Employees who are not fully vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers. Additionally, employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer. Further, employers must continue to follow some of the previous ETS requirements such as, establishing a written COVID-19 Prevention Program and providing training to employees on COVID-19.
As the State begins to reopen and Californians head back to the workplace with all of these new guidelines and standards, the best thing to do is visit the CDPH and Cal/OSHA Board websites for up-to-date information or consult an attorney for employment advice.
By: Mustafa Karim, 2021 Summer Law Clerk at Wilke Fleury
Wilke Fleury is proud to announce that 15 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2021 Northern California Super Lawyers magazine.
Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys. 1 of 15, Michael Polis, was also recognized on Page 9. Polis’ second job as a farmer was highlighted with a column and some neat photos.
Check out the digital article here!
Freedom of speech and the right to petition are fundamental rights protected by the First Amendment of the United States Constitution. A SLAPP Action is a “Strategic Lawsuit Against Public Participation” and is used to silence and intimidate critics by forcing them to defend a meritless lawsuit, draining their financial resources.
The Legislature enacted the anti-SLAPP statute in 1992 in response to a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” The anti-SLAPP statute authorizes a special motion to strike meritless claims early in litigation if claims “arise from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”
Acts “in furtherance of” these rights include,
(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Only when a defendant shows that a cause of action is based on protected conduct and the plaintiff fails to show a likelihood of success on that claim is it subject to dismissal.
Anti-SLAPP motions can be significantly costly and time-consuming. If a defendant prevails on an anti-SLAPP motion, the lawsuit will likely be dismissed, and attorney fees may be awarded. However, if the court finds that the anti-SLAPP motion is frivolous, then attorney fees and costs may be awarded to a plaintiff.
By: Mustafa Karim, 2021 Summer Law Clerk at Wilke Fleury
 Cal. Code Civ Proc., § 425.16, subd. (a).
 Cal. Code Civ Proc., § 425.16, subd. (b)(1).
 Cal. Code Civ Proc., § 425.16, subd. (e).
 Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360 [117 Cal.Rptr.3d 747].
 Wong, supra, 189 Cal.App.4th at p. 1360.
 Cal. Code Civ Proc., § 425.16, subd. (c)(2).