Can private employers mandate vaccination as a condition of returning to the workplace? The recent spike in the COVID-19 Delta variant has caused the re-closure of worksites or changes to workplace safety protocols, leading to legal developments that provide more clarity to this issue.
In this Quick Chat video, our Labor and Employment lawyers breakdown
So much for the summer of freedom. As anticipated, the seven Bay Area counties of San Francisco, San Mateo, Alameda, Santa Clara, Contra Costa, Marin, and Sonoma plus, the city of Berkeley, announced today that they are now mandating that everyone — regardless of vaccination status — wear
Pressure is mounting on U.S. and multinational employers to require COVID-19 vaccines for employees, as the Delta variant spreads voraciously, spiking infections and hospitalizations across the country and forcing employers to once again shutter worksites or change their workplace safety protocols. But can (and should) employers mandate vaccination?
Vaccine mandates received strong support on Thursday, July 29 when President Biden announced that all civilian federal employees and onsite contractors either must be vaccinated or submit to regular testing, social distancing, mask requirements, and restrictions on travel. The same day, the U.S. Treasury Department released a policy statement directing state and local governments to use funds from the $350 billion American Rescue Plan to incentivize vaccines by offering $100 to individuals who get vaccinated.
Separately, more than 600 universities have announced mandates for students or employees. And state and local governments have joined in, with California and New York City announcing mandates this week for government employees and certain healthcare workers, and the federal Department of Veterans Affairs announcing that frontline VA health care employees must get vaccinated or face termination.
Large employers are joining the fray, with global technology companies, financial institutions, healthcare systems, retailers, transportation companies and media companies recently announcing that vaccination will be required for everyone in their workplaces.
So can private employers adopt mandatory vaccination policies? What follows is a framework for understanding whether such an approach is permissible both in and outside the US, as well as some of the key considerations for such policies.
We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.
Please see HERE. This is updated weekly.
For your convenience, here is a summary of the major updates from around the country:
Special thanks to our summer associate Janice Lin for her contributions to this post.
The Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) saga is over. As predicted (see our blog here), and after the dizzying flutter of proposals, board meetings, emotional public comment, and votes to reject, approve, and withdraw prior amendments (see here, here, here, and here), the Cal/OSHA Standards Board finally voted to align the ETS with CDC guidance at its June 17 board meeting. Governor Newsom signed Executive Order N-09-21 in conjunction with the vote, making the new ETS effective immediately.
As a result, California employers – finally – can harmonize their workplace mask and distancing rules with the rules applicable to non-workplace settings.Continue Reading The Saga is Over: California Scraps Masks and Social Distance for Employees, Effective Immediately
We recently published an update to our 50-state Shelter-In-Place / Reopening Tracker.
Please see HERE. This is updated weekly.
For your convenience, here is a summary of the major updates from around the country:
With Cal/OSHA, the only constant is change. In an unprecedented move, Cal/OSHA has published FAQs explaining and interpreting the proposed amendments to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) before the Standards Board has voted to approve the amendments, with the vote not scheduled to occur until June 17. Cal/OSHA’s publication of these FAQs in advance of the June 17 vote is unusual, and demonstrates the agency’s desire to quickly implement the amendments once the vote occurs. The advance publication of the FAQs is yet another indication of how that vote is expected to go.
And Governor Newsom has weighed in, stating that if the board votes to adopt the proposed amendments, he will sign an executive order on June 17 codifying that vaccinated workers do not have to wear masks-eliminating the normal 10-day administrative review period before the amendments would otherwise take effect. (Anyone who attended Cal/OSHA’s June 3 board meeting-with approximately 8 hours of public comment and a vote that didn’t occur well into the evening-might wonder whether Governor Newsom would be able to take executive action the same day. But the June 17 board meeting starts at 10:00 a.m. Pacific and the agenda limits public comment to 2 hours-leaving ample time for a vote and for Governor Newsom to act.)Continue Reading Who Can Keep Up? Cal/OSHA Publishes FAQs for Proposed Amendments to the ETS Before the Standards Board Vote
The Cal/OSHA Standards Board just released its latest round of proposed amendments to Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS). If adopted, the new amendments will allow all employees to forgo physical distancing at work regardless of vaccination status. And vaccinated employees will be able to take off their masks, even while indoors. The changes are expected to take effect June 28, but may be implemented sooner.
The proposed amendments represent another dramatic reversal of the workplace rules for California employees, and effectively will relax those rules beyond current Centers for Disease Control and Prevention (CDC) guidance, which still recommends that unvaccinated persons physically distance both indoors and outdoors.
The Standards Board released the new proposed amendments just two days after the board voted to withdraw other revisions to the ETS that were already pending administrative review. We blogged here and here about how the board reversed course at its June 9 meeting, voting to withdraw amendments to the ETS it had approved just days prior at its June 3 meeting.
Now, the Standards Board will consider and vote on the latest amendments on June 17 – so employers should not take any action just yet. As we have seen, the Standards Board can quickly change its positions on ETS amendments.Continue Reading Social Distancing? Gone! Masks? No Longer Required! Cal/OSHA Continues to Whipsaw California Employers with Proposed Rule Changes
On June 10, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued updated guidance on mitigating and preventing the spread of COVID-19 in all workplaces. Though employers in all industries have been waiting for months for OSHA’s expected issuance of Emergency Temporary Standards (ETS), OSHA only issued an ETS applicable to healthcare workers, effectively ending the likelihood of COVID-19 emergency standards for other business sectors.
The updated guidance, which largely aligns with current CDC guidance, focuses on encouraging COVID-19 vaccination and protecting unvaccinated and otherwise at-risk workers. The guidance states that except for workplace settings covered by OSHA’s ETS (for healthcare settings) and mask requirements for public transportation, “most employers no longer need to take steps to protect their workers from COVID-19 exposure in any workplace, or well-defined portions of a workplace, where all employees are fully vaccinated. Employers should still take steps to protect unvaccinated or otherwise at-risk workers in their workplaces, or well-defined portions of workplaces.”Continue Reading OSHA Issues Updated COVID-19 Guidance for All Workplaces
Special thanks to our summer associate Janice Lin for her contributions to this post.
Confused yet by Cal/OSHA’s frequent changes to California’s Emergency Temporary Standard (ETS)? If so, there is a new development that might help clear things up.
Last night (June 9), the Standards Board that established the ETS changed its mind for the third time in less than one week, and withdrew amendments to the ETS that were approved on June 3. As a result, the existing ETS adopted in November 2020 remains in effect, and requires California-based employees to continue to wear face coverings indoors and physically distance-regardless of vaccination status-at least until June 17.Continue Reading The More Things Change, the More They Stay the Same: Cal/OSHA Standards Board Reverses Course and Votes to Withdraw ETS Amendments it Approved Last Week
