Many California Workers Must Get Vaccines or Routinely Test for COVID-19

California state employees, health care workers and workers in high-risk settings must show proof of vaccination or adhere to weekly COVID-19 testing and other safety protocols, Gov. Gavin Newsom recently announced.

Newsom issued this directive after the state saw a surge in new COVID-19 cases, hospitalizations and deaths. "We are now dealing with a pandemic of the unvaccinated, and it's going to take renewed efforts to protect Californians from the dangerous Delta variant," he said.

Michael Warren, an attorney with McManis Faulkner in San Jose, Calif., said the state's new order does not immediately impact private employers—other than those in covered health care and high-risk settings—but they should plan for expanded requirements at the state or local levels, especially if the Delta variant continues to spread.

Newsom is urging more municipalities and employers to follow the state's lead. "As the state's largest employer, we are leading by example and requiring all state and health care workers to show proof of vaccination or be tested regularly, and we are encouraging local governments and businesses to do the same," he said.

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The cities of Long Beach, Los Angeles and San Francisco, as well as San Diego County, are working on their own mandates, and some large employers that are headquartered in California are doing the same.

Daryl Landy, an attorney with Morgan Lewis in Costa Mesa, Calif., said there is substantial legal support in California and under federal law for private employers to make vaccination a condition of hiring or continued employment, and the state's recent actions should provide additional support for employers that are considering a vaccine mandate. He noted that employers still need to consider reasonable accommodations for employees that have religious and disability-related objections to getting vaccinated.

Compliance Steps for Covered Employers

California's statewide measure applies to "all state workers and workers in health care and high-risk congregate settings." In addition to state employees, the public health order applies to many employers in the private sector, Landy explained. Covered businesses include acute health care and long-term care facilities (such as skilled nursing facilities) and various other health care settings such as surgery centers, medical clinics, doctor offices and dental offices. High-risk settings include adult and senior residential facilities, homeless shelters and jails.

Mini Kapoor, an attorney with Haynes and Boone in Houston, said the order essentially requires covered employers to take the following steps:

• Track and verify employee vaccination status.
• Establish testing requirements for employees who are not fully vaccinated.
• Comply with current masking guidance from the California Department of Public Health (CDPH), which requires mask-wearing for everyone in health care and other high-risk settings and recommends that unvaccinated people in high-risk settings use respirators if they aren't otherwise required to do so under state law. The CDPH also updated its recommendations for fully vaccinated people to resume wearing masks in public indoor settings.

Covered businesses must fully comply with the order by Aug. 23. Kapoor said employers should revise their COVID-19 written plans and safety policies, train employees on the new policies and ensure that adequate supplies are available to meet the mask requirements.

Landy recommended that covered employers take the following steps:

• Immediately explain the new requirements to employees.
• Ensure the HR department is ready to evaluate and respond to accommodation requests.
• Develop a standard process for collecting vaccination status information and maintaining the confidentiality of that information.
• Provide information to unvaccinated workers on where and how to obtain regular testing for COVID-19.

Kapoor noted that Newsom's order isn't clear about whether employers must pay for COVID-19 testing for unvaccinated employees. Employers may consider offering free testing or provide employees information about local sites that offer free testing, she said.

"If not already doing so, employers should impose mask requirements on visitors, customers, vendors and contractors, and follow the current state masking and respirator guidance," she added.

Handling Objections from Employees

What should a covered employer do if an employee refuses to get vaccinated or submit to regular testing? Employees can be fired for refusing to comply, but Kapoor suggested that employers learn more about why an employee is resisting vaccination and testing. Depending on the circumstances, she said, employers may consider accommodations such as social distancing, remote work or reassignment.

"All such efforts must be documented," Kapoor said. Employers will need to explore reasonable accommodations for employees with disability-related objections or a sincerely held religious belief that conflicts with the vaccination mandate, but these exemptions generally would not apply to COVID-19 testing requirements, she noted.

Martha Doty, an attorney with Alston & Bird in Los Angeles, observed that some employers are being flexible by allowing resistant employees to continue working remotely. "But for those employers who have made the decision not to do so, they should be clear in their return-to-office policies and protocols that failure to abide by the vaccination, testing or masking rules will subject employees to discipline," Doty said

Landy noted, "In all cases, employers should treat the resisting employees respectfully, even if the outcome is the employee's termination for refusing to comply with the vaccination and testing conditions."

Regularly Review Policies

COVID-19 safety rules and guidelines are evolving, so employers should routinely review their policies, even if they're not covered by the new California order. In addition to the CDPH, the U.S. Centers for Disease Control and Prevention (CDC) recently updated its recommendations for fully vaccinated people to resume wearing masks in public indoor settings, but the federal and state guidelines are slightly different. California officials recommended that everyone wear masks in public indoor settings throughout the state. The CDC's recommendations are limited to geographic areas with substantial or high transmission. "Employers should incorporate these recent updates in their efforts to keep their workers safe," Warren said.  

Additionally, employers should note that wearing masks indoors is required—rather than recommended—in some counties, such as Los Angeles, Sacramento and Yolo.

California employers should closely review the California Division of Occupational Safety and Health's (Cal/OSHA's) guidelines, Doty said.

Cal/OSHA updated the state's COVID-19 safety rules in June. "Although those guidelines—particularly the ones on permitting fully vaccinated employees to be unmasked in the workplace—must take a back seat now to local mask mandates, there are a number of items employers must comply with in those guidelines as they reopen their offices," she explained.

[Want to learn more about COVID-19 and workplace safety? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]