Vaccinate or Not Vaccinate?

To Vaccinate or Not To Vaccinate In the Workplace

These days, we get this question asked often. Answer: it is at the employer’s discretion.  There may be a mandate in the near future for employers over 100 employees, but for the time being, we will address the question in general.

Both the federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) have allowed that employers can create mandatory vaccination policies.  The Emergency Temporary Standards also allow flexibility for employers that wish to impose more strict health and safety measures, such as requiring all employees to wear face coverings regardless of vaccination status

Undecided?  Things to Consider:

If an employer chooses to create a mandatory vaccination policy for its workplace there are a few things to consider if the employee states that the vaccine is not going to happen:

Disabilities: Employers must determine whether an employee has a recognized disability and may request medical certification of the disability and that the requested accommodation is medically advisable.

Religious Exemption:  For sincerely held religious beliefs, the law takes an incredibly broad view of these, so employers are usually required to take the employee’s beliefs at face value.

Accommodation: Once an employer knows the employee has a protected disability or religious belief, both the EEOC and the DFEH instruct employers to engage in an interactive process to determine if there's a reasonable accommodation for the employee’s inability to receive the vaccine; this must be done before the employer makes any decisions regarding that individual's employment.

While the EEOC identifies several potential accommodations that may be reasonable — wearing masks, adjusting shift schedules, teleworking and reassignment — whether an accommodation is appropriate and doesn't constitute undue hardship requires a case-by-case analysis. Because each case will be unique, employers who do end up navigating this issue are strongly encouraged to seek legal counsel.

Cal Osha’s guidance

For most of the state’s workforce, the COVID-19 Emergency Temporary Standards from the California Division of Occupational Safety and Health (Cal/OSHA) sets the workplace safety rules regardless of vaccination status. In the most updated version (June 17, 2021), Cal/OSHA changed its face covering and exclusion rules dependent upon an employee’s vaccination status.  Below are areas of the Emergency Temporary Standards to keep in mind.

Vaccinated Employees (V) vs. Non Vaccinated Employees (NV):

V - A fully vaccinated employee doesn't have to wear a mask at any time if the employer chooses to exercise this rule.

V- Employers do not have to exclude fully vaccinated employees from the worksite even if they're a close contact to a known COVID-19 case (within 6 feet of a known case for a cumulative 15 minutes over the course of 24 hours) unless the vaccinated employee becomes ill.

NV- Employees not fully vaccinated, however, must wear a mask indoors under most circumstances.

NV- Employees not fully vaccinated must follow the original rules: they must be excluded if they are a close contact and follow the Emergency Temporary Standards' return to work protocol (i.e., 10 days from their last known contact with a known COVID-19 case).

Verifying Vaccine Status

The Emergency Temporary Standards does not specify a particular form of verification. Cal/OSHA recommends a non-exhaustive list of ways an employer may verify the vaccination status, such as:

• Collecting a copy of the vaccination record;
• Viewing the vaccination record and creating a separate record that the employee is fully vaccinated; or
• Allowing employees to self-attest that they are fully vaccinated and create a record of those who self-attested.

Whichever method the employer uses, any record obtained or created is confidential and should be kept separate from the personnel file.

Pay Attention to Local Ordinances

Of course, this isn’t the end of the story. The Emergency Temporary Standards require employers to follow local orders to the extent that they are stricter than the ETS standards. This has popped up most recently with some areas imposing their own indoor mask mandates regardless of vaccination status. In those areas, employers cannot allow fully vaccinated employees to go without masks because the local public health orders are stricter than the Emergency Temporary Standards.

In a Nutshell

It is still the employer’s decision.  If the employer chooses to mandate vaccines, take steps to not discriminate and work through the interactive process.  And last but not least, pay attention to recent updates (including industry and city specific) as these regulations change rapidly and at times with no prior notice.  Local health mandates which are stricter may also be enforced, overriding the Emergency Temporary Standard.

Rules will likely change again soon, so please watch for updates, and contact hrsupport@infiniumhr.com if you have any questions.