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.
Bottom line: in the US, private employers can legally mandate vaccines under federal law, subject to the legal considerations outlined below. State law, however, differs by jurisdiction, with some states authorizing vaccine mandates while at least one has banned them. For illustrative purposes, we discuss California law in the framework below.
A proposed bill in California seeks to protect workers against nondisclosure agreements and empower them to speak out about alleged acts of discrimination, including racism. Senate Bill 331, known as the Silenced No More Act, was introduced in February 2021 and seeks to expand protections against confidential settlements to cover all forms of harassment or discrimination under California law, including on the basis of race, ancestry, religion or gender identity. If passed, the law will impose greater restrictions on companies’ freedom to contract settlement and non-disparagement agreements.
New Obligations if SB 331 Passes
- SB 331 will expand the existing prohibition of provisions that prohibit discussing sexual harassment in the workplace to discussing any type of harassment (i.e., race, age, religious harassment). (See discussion of SB 820 below.)
- The law will prohibit non-disparagement agreements that prohibit the disclosure of information about unlawful acts in the workplace.
- The law also will create new obligations, such as the requirement to notify the employee that the employee has a right to consult an attorney regarding the agreement and giving the employee “a reasonable time period of not less than five business days” in which to do so.
Several Employer-Friendly Changes to Observe
- The law clarifies that including a general release or waiver of all claims in an agreement related to an employee’s separation from employment does not violate the statute.
- It verifies that the law does not prohibit a provision that precludes the disclosure of the amount paid in settlement of a claim.
- It confirms that employers may protect trade secrets, proprietary information, or confidential information that does not involve unlawful acts in the workplace.
Now, so long as the business has already completed two rounds of “ascertainment” of the employees’ vaccine status, the business does not have to check employee vaccination…
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.
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.)
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.
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.
In April, California Gov. Gavin Newsom signed a statewide right-to-recall law — S.B. 93 — affecting certain employers. One of the key provisions of the new law, which has not been subject to much discussion, is how it affects corporate transactions.
In this article, we discuss how this new statute that could present challenges for …
As we previously reported here, the California Occupational Safety and Health Standards Board voted last week to amend Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) so that new mask and physical distance rules will apply in California workplaces effective June 15, 2021. Now, less than four days later, the Standards Board has called a special board meeting for June 9 to consider “new information from the California Department of Public Health on pending guidance regarding COVID-19 Prevention, and take action if appropriate.” The Standards Board will hold this special meeting in advance of its regularly-scheduled Standards Board meeting on June 17. Employers should watch this new twist in the Cal/OSHA ETS saga closely.
Continue Reading NSFW: There Is Yet Another Twist in the Continuing Saga of Cal/OSHA’s Mask and Distance Mandates for California Workplaces