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