Can California employers require employees to receive a COVID-19 vaccine?

With the recent rise in Covid-19 cases, many California employees are now wondering whether their employers can mandate that they be vaccinated. This raises many issues dealing with privacy, workplace safety and the extent of control employers have over employees.  

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on employer-mandated COVID-19 vaccinations. Specifically, the EEOC stated that the administration of a COVID-19 vaccine to an employee by an employer, or by a third-party administrator on behalf of the employer, is NOT a “medical examination” under the ADA. This position allows private employers to implement COVID-19 vaccine policies and require employees to be vaccinated as a condition to continued employment or, at the very least, as a condition to returning to the physical workplace. 

However, this does not give employers carte blanche to vaccinate their employees.  If an employer decides to mandate COVID-19 vaccinations of its employees, the employer must be prepared to reasonably accommodate employees who either cannot, or will not, be vaccinated for medical or sincerely held religious reasons. 

In its recent guidance the EEOC discussed how an employer should evaluate whether to accommodate an employee who cannot receive a COVID-19 vaccination due to a medical condition or disability. Employers are required to conduct an individualized assessment of four factors, each open to interpretation, in determining whether a significant threat exists:

1. The duration of the risk;

While many may consider the duration of the risk to be the time that the employee is contagious it can be exponentially lengthened if the disease is exposed to others in the work place. In the event that there is a COVID-19 outbreak the “duration or risk” will most likely not be limited to the time a single employee is infectious but can be extended to each individual who has been exposed.

2. The nature and severity of the potential harm;

Unfortunately, at this point with approximately 440,000 deaths nationwide, we are all too familiar with the nature and severity of COVID-19. The COVID-19 virus effects respiratory system and has a myriad of symptoms and including but not limited to: fever, chills cough, headache, nausea, loss of taste or smell, diarrhea and vomiting. With the potential threat of death for those who are immune comprised or elderly.

3. The likelihood that the potential harm will occur; and

When determining the likelihood of potential harm, employers should consider the type of work involved, the proximity of employees to one another, whether proper PPE has been provided and if the company is adhering to Center for Disease Control (“CDC”) or other internal guidelines to prevent a potential outbreak of COVID-19.

4. The imminence of the potential harm.

When determining the imminence of potential harm several variables to consider should include: Whether there has been a previous COVID-19 outbreak in the workplace as well as the number of outbreaks that have occurred.  If any employees show potential signs of being COVID-19 positive. Whether proper CDC or internal safety guidelines are being adhered to. As well as the nature of the work.

If an employer concludes that there is a significant threat after weighing these four factors, the employer STILL cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a significant threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

In conclusion, California employers may require their employees to be vaccinated against COVID-19 as a condition to continued employment or, at the very least, as a condition to returning to the physical workplace. However, an employee may be exempt due to a valid medical condition/disability or religious belief. If an employee chooses to not be vaccinated due to a medical condition/disability the employer must weigh four factors to determine if the employee poses a significant threat. In the event that the employer concludes that an employee poses a significant threat the employee must be accommodated prior to being excluded from the workplace.