The rollout of the Pfizer and Moderna vaccines in the United States has triggered extensive discussion around the law concerning mandatory vaccine policies in the workplace. This discussion will almost certainly evolve over the coming months, as more becomes known about vaccine availability at the time of widespread office reopening, side effects and other considerations.
In the meantime, on December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its pandemic-related guidance and FAQs, principally with respect to the interplay between workplace vaccine mandates and federal anti-discrimination laws. Consistent with prior EEOC guidance regarding flu and other vaccinations, the EEOC reaffirmed that, in general, employers may lawfully impose a vaccine mandate as a condition to return to the workplace, and, more specifically, as a lawful qualification standard to address a direct threat to the health or safety of personnel. However, employers must reasonably accommodate employees who cannot comply with the mandate because of a disability and/or sincerely held religious belief, so long as such accommodation does not constitute an undue hardship to the business.
Employers should consult legal counsel as they consider and prepare to implement mandatory, as well as voluntary, vaccine programs, and any such program should be conveyed in a clear written personnel policy.
California’s Office of Administrative Law (OAL) approved California Division of Occupational Safety and Health Administration’s (Cal/OSHA) proposed emergency regulations on COVID-19 prevention on November 30, 2020. The Emergency Temporary Standards (ETS) took effect immediately and require California employers to implement strict workplace safety measures to reduce the risk and transmission of COVID-19. Emergency regulations generally remain in effect for 180 days unless the OAL approves a re-adoption of the regulations during that time period.
Many of the ETS provisions were previously mandated by state or local government orders, yet the ETS impose several new requirements on employers, particularly in the event of COVID-19 cases in the workplace. The key provisions of the ETS are described in the following alert.
The ETS apply to all California employers and workplaces except: (1) workplaces with only one employee who does not have contact with others; (2) employees working from home; and (3) employees covered by the Aerosol Transmissible Diseases regulation.
The ETS compel all covered employers to implement a written COVID-19 Prevention Program (“CPP”). A detailed list of what must be included in a CPP can be found in these FAQs, but at a high level, the CPP must (1) identify, evaluate and correct COVID-19 hazards in the workplace; (2) require safety precautions such as physical distancing, providing and requiring face coverings and other controls aimed at reducing transmission risk; (3) provide training on COVID-19 and communicate about the employer’s prevention procedures to employees; (4) keep a record tracking all COVID-19 cases in the workplace, keeping any medical information confidential.
This recordkeeping must be made available to employees and their authorized representatives (e.g., unions) upon request, with personal identifying information removed. The CPP must also include the employer’s obligations in the event of a COVID-19 case in the workplace, which are described in more detail below.
Cal/OSHA has provided a Model COVID-19 Prevention Program to assist employers in developing their own effective COVID-19 Prevention Program.
In the event of a COVID-19 case in the workplace—i.e., someone who has a positive COVID-19 test, who is subject to a COVID-19-related order to isolate by a public health official, or who died due to COVID-19—the employer must take the following actions while maintaining employee confidentiality:
In the event of a COVID-19 outbreak in the workplace, (currently defined by the State Department of Public Health as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period), or a major outbreak (currently defined by the State Department of Public Health as 20 or more laboratory-confirmed cases within a 30-day period), in addition to a covered employer’s obligations described above in response to a COVID-19 case, it must also (1) notify its local health department immediately (within 48 hours at the latest); and (2) provide more extensive testing.
For outbreaks, the employer must provide free initial testing and follow-up testing after one week to all employees during working hours. There must be continued testing weekly until there are no new cases in a two-week period. If an employer has a major outbreak, it must provide testing twice per week until there are no new cases in a two-week period.
Covered employers should review their existing COVID-19 exposure response plans to ensure compliance with the ETS. The California Department of Industrial Relations (DIR) acknowledged that employers will need time to fully implement these standards, but underscored that eliminating COVID-19 hazards and adhering to the new testing requirements are essential. The DIR has published FAQs and a fact sheet to help employers meet the ETS requirements.