COVID – 19 Mandatory Workplace Vaccinations

During these uncertain times, people have many doubts about COVID – 19 Vaccinations and whether they have a right to decline employer's COVID – 19 Vaccinations workplace policies. Mandatory workplace COVID – 19 Vaccinations are lawful with some exceptions based on disability, religion, potential employees with an employment agreement and workers whose employment is governed by a collective bargaining agreement. Mandatory vaccination policies are subject to the employers’ reasonable accommodation obligations. The mandatory vaccine programs can be assisted on grounds under the ADA if it shows that an unvaccinated employee is a direct threat to the health and safety of others at work.

While California law allows for mandatory vaccination programs in the workplace, employers are still subject to Fair Employment and Housing Act ("FEHA") compliance based on protected traits. Employers must accommodate employees with disabilities and with honest held religious beliefs or practices. Employers cannot retaliate if an employee with a disability or an honest held religious belief resists mandatory vaccination.

Because of the novel nature of the law, the final determination what is lawful in regards to mandatory vaccinations in the workplace, requires individualized assessment of such factors as a direct threat or risk of unvaccinated employee and the duration of that risk, the nature and severity of the harm based on the local severity of the pandemic, the likelihood of the potential harm occurring which can be determined by the employee’s own health, and the imminence of the potential harm based on the likelihood of the worker’s exposure.

Another question that can grow from these new guidelines is if the employer can require proof of a protected disability or a protected religion. Employers can require confirmation from a health care provider that an employee has a protected disability and needs to be accommodated. The employee, however, does not have to disclose the disability. If an employer has reasonable suspicion to believe that the employee's reported disability or religious affiliation is fabricated, they may inquire about the basis and make a limited inquiry into the relevant circumstances as to whether a belief or practice is religious and sincerely held.

If a disabled employee or one with an honest religious belief requests not to be subject to a vaccine mandate, the employer should consider certain accommodations such as allowing the employee to work remotely, implementing vigorous safety protocols, modifying schedules or duties to avoid or limit interaction with others, providing paid or unpaid leave, requiring the employee to determine whether a different vaccine may be safe for the employee. Employers should not automatically terminate the employee if the employee declines to participate in a mandatory vaccination policy.

Although an employer can request proof of COVID – 19 vaccinations, employers must be cautious when asking questions about why an individual did not receive a vaccination, this question may give rise to information about a disability. In addition, employers should not ask for a copy of the vaccine card.

If an employee tests positive for COVID – 19, in order to prevent the infection, employers should clean and disinfect, quarantine per CDC guidelines and follow the travel and self-quarantine policies. Continue with COVID – 19 safety protocols and requirements even with employees who have been vaccinated or employees who have already had COVID – 19. Employers should not ask if the employee has had COVID – 19.

If your employer is planning on continuing employees to work remotely, there are some points to consider about expense reimbursement. Employer may have to compensate the working from home employee for the internet, energy, printing paper, printer ink, and related expenses that employee did not have when working from the office.

It is also important to properly pay employees for all hours worked even if they work from home. Although difficult to determine and track the hours worked while at home, it is important to record time worked when there is additional work time required, if employees receive late night emails, text messages and/or weekend work. Although employees work from home, it is important to provide an uninterrupted 30-minute unpaid meal break and a 10- minute uninterrupted paid break for every 4 hours worked.

If you believe your employer is violating any of the foregoing requirements , you should consult the employment attorneys at the Serendib Law Firm. We represent people in Orange, Los Angeles, San Bernardino, and Riverside Counties. Call us at 1-800-LAW-8825 (800-529-8825) or complete our online form.