While employers may be within their rights to require their workers get vaccinated, an attorney advises caution; California implements new safety requirements for employers.
Vaccination mandates. A vaccine for Covid-19 is reportedly approved for production and distribution is expected within the next few months. And it couldn’t come soon enough for employers who are anxious to get workers back to working safely on-site.
In general, once a safe and effective vaccine is available, employers will be able to require most employees to get Covid-19 vaccinations, writes Best Best & Krieger LLP partner Lisa Bell in an article on JDSupra . However, the decision to require or encourage vaccinations should not be undertaken lightly or without consultation with counsel, she advises.
Steps and issues for employers to consider include:
- Reviewing guidelines issued by health agencies — such as the Centers for Disease Control and Prevention — and employment agencies (e.g. OSHA and EEOC) regarding vaccinations, deadlines, monitoring, compliance and personnel/staff designations who could oversee a vaccination program.
- Reviewing and updating applicable HR policies, particularly those relating to reasonable accommodations and discipline, to ensure compliance and guidance that acknowledges any new vaccine requirement.
- Determining whether vaccinations will be mandatory or strongly encouraged. Given the industry an employer is in, the exemptions that may be requested and the potential impacts on employee morale, some employers may opt for the latter.
- Evaluating alternatives to a mandatory vaccination policy, such as remote work, physical distancing, facial coverings and other CDC-recommended steps that may serve an employer’s needs. To encourage vaccinations even if they will not be required, employers should determine if it is possible to provide the vaccinations at no or little cost to employees and consider making vaccinations available on-site at times convenient to employees during their normal working hours.
- If vaccinations will be mandated, employers should work with legal counsel to create an appropriate mandatory vaccination policy, including applicable forms and notices. Employers with a unionized workforce will need to evaluate any new vaccination programs with collective bargaining considerations as they will likely have to negotiate the implementation of a mandatory vaccination program with the union.
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California workplace safety. California’s Occupational Safety and Health Standards Board adopted a temporary workplace safety standard  that outlines mandatory requirements for employers to protect their workers from Covid-19. The standard went into effect on Monday and is slated to expire on Oct. 2, 2021.
The state’s Department of Industrial Relations announced the new standards , which apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Under the new regulations, employers must have a written Covid-19 Prevention Plan that addresses the following:
- System for communicating information to employees about Covid-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
- Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
- Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
- Correcting Covid-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
- Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
- Face coverings – providing face coverings and ensuring they are worn.
- Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
- Positive Covid-19 case and illness recording requirements and making the Covid-19 Prevention Plan accessible to employees and employee representatives.
- Removal of Covid-19 exposed workers and Covid-19 positive workers from the workplace with measures to protect pay and benefits.
- Criteria for employees to return to work after recovering from Covid-19.
- Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
- Specific requirements for infection prevention in employer-provided housing and transportation to and from work.
California employers will need to carefully analyze their workplaces, and perform and consider the criteria provided by the standard to comply with Cal/OSHA’s regulation, The National Law Review reported . Employers should continue to look out for updates from Cal/OSHA about the standard and how it will interpret certain provisions within it, and consult experienced OSHA counsel on managing compliance.