By the Department of Consumer and Business Affairs in partnership with Bet Tzedek Legal Services
Note: These FAQs provide some general guidance on the COVID-19 vaccine information available for California small businesses and their owners during the COVID-19 emergency. This document does not constitute legal advice, and cannot substitute for expert consultation.
General Reminders
The current COVID-19 pandemic is an evolving situation. Governmental and private actors continue to assess the impact of the pandemic on small businesses and others, and new programs (or changes to existing ones) continue to develop. Stay tuned to reliable sources (see suggestions in the below Q&A) for updates.
Q: What are some healthy workplace strategies?
- Anticipate employees expressing a range of concerns:
- Health/disability concerns
- Sincerely-held religious objections
- Strongly held beliefs against vaccinations in general
- Concerns about possible safety issues/rushed development – vaccines have only Emergency Use Authorizations (“EUAs”), which require that patients be given a choice to take a vaccine that only has an EUA
- Most likely, employers cannot compel their employees to get vaccinations
- Engage unions early to seek buy-in
- Conduct education campaigns
- Strategize regarding records-keeping plans
- Paid time off to get vaccines
- Send reminders for follow-up shots
- Considering Covid-19 Vaccine Mandates (but see discussion below)
- Exceptions for workers with disabilities or sincerely held religious beliefs
Q: What are some considerations that employers should have as they relate to the vaccine?
- Your current written policies regarding other vaccinations
- The industry standard for your business regarding vaccinations
- Potential exposure to high-risk individuals resulting from 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 precautions in many situations, including wearing face masks even if you are fully vaccinated
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- CDC guidance now says that, in non-healthcare settings, fully vaccinated people may 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
- CDC guidance now says that, in non-healthcare settings, fully vaccinated people may now:
- Covering the costs of the vaccines
- The Fair Labor Standards Act and the California Labor Code require employers to reimburse employees for their reasonable business-related expenses (which would include vaccines if employers require or urge employees to get vaccinated)
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Q: What are some questions that Employers should expect?
- 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).
- Please keep in mind that the guidance in these regulations is changed periodically. Updated information for OSHA, Cal/OSHA, the Fair Labor Standards Act, and the California Labor Code can be found below:
- What is the updated CDC guidance?
- CDC guidance is constantly evolving and should be referred to frequently.
- Updated information regarding CDC guidance can be found here: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/essentialworker/workplace-vaccination-program.html
- What are the related and new legislations regarding vaccines?
- Employers should 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 Emergency Use Authorizations (EUAs).
- Because of EUAs, at this point employers may not be able to compel employees to get vaccinated – for example even for front-facing health care workers, most employers have not compelled employees to get vaccinated – since taking the vaccination carries some unknown amount of risk.
- 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.
- Will the U.S. government be issuing vaccine passports?
- At this point the Biden administration has stated that it is not going to support this notion; BUT the administration plans to offer guidance for private companies to development credentials.
- Uncertain as to the potential/actual impact on employer workplace polices.
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 should provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII.
Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.
