Episode 110: COVID-19 Vaccine and the Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erika Frank, Cal Chambers Executive Vice president and General Counsel. And back on the podcast today is Jennifer Shah of the Shah Law Group. Welcome, Jen.

Hi, Erica. How are you?

I'm doing well. And you know, as we've been discussing for most of the past year, COVID 19 is continuing to impact workers in the workplace.

Yes, it certainly is.

However, this time there is a little bit of a light at the end of the tunnel, and that has to do with the role vaccines are now playing in our efforts to combat COVID 19.

I can't believe I'm saying this, but there have been some good parts about COVID Like I've really enjoyed being home with my daughter, not traveling, not eating out all the time. There's been some good parts about this. I started thinking about it today with the vaccinations that we really are going to be able to open back up. I remember when my daughter's school first closed, I thought it'll be closed for a week or so. That was last March, the first week of March, more than a year ago. Luckily, because her school's outside, she's been going outside since October. But I mean, our lives are so insulated right now and, or insular or whatever the word is, we just don't do anything. So it's funny, it is opening up and the vaccinations are making that possible, Jen.

I know, and it's really exciting because I feel like as I interact with more and more people at a distance, of course, that more and more people are receiving their vaccinations. And so that is very encouraging.

We have a lot of clients who initially told me that their employees didn't or want to be vaccinated. A lot of their employees. And now they're saying, you know what, Jen? We're rolling out these vaccine plans and programs and these folks want to do it. I think it just took a little bit of getting used to for some of us.

So let's talk about, Jen, those vaccine plans. I know as we are moving through the state of California's metrics of who is next in line to receive their vaccines in the state of California, they called the vaccination program vaccinate all 58. And we know that there are different groupings who are eligible to receive the vaccinations. As we're moving through those groupings and more and more people are becoming eligible, employers are starting to put their thinking caps on and trying to discern what is our role. Do we serve as an informational portal for our employees so they know where to go. Do we encourage it or do we take a bigger step of requiring.

That's right. And I think a lot of employers have really been sort of on the fence about what to do. And luckily the Department of Fair Employment and Housing came out last week with this new guidance. We've known from the EEOC for a long time that it was okay for employers to mandate the vaccine if that's what they wanted to do. There are a lot of parameters. Of course, one of the questions with the EEOC guidance was whether the vaccinations or the vaccines, having received that emergency use authorization, whether that was actually going to be considered FDA approved. The DFEH made clear last week that it is. The good news there is that employers can mandate the vaccinations. The question becomes a. Does it make sense to do that? Because when you mandate it, you. You also have to provide a reasonable accommodation for folks who have a disability or religious reason to not participate. Not by the way, a political reason or just generally, I don't believe in the vaccine or it's not cool or whatever. It's gotta be one of those protected bases, but. Or should we do some sort of encouraging of vaccinations? The problem with that is you can't really offer much in the way of incentives without running afoul of other laws. So employers have a lot to think about here. I'm grateful for the DFEH because I feel like they put together a good document. They had guidance available last year, they rolled it out at least a couple of times, but now it includes everything about the vaccinations and I feel like they did a nice job.

I agree. And I encourage all employers listening to visit the DFEH website to their COVID 19 resource page because you can download the guidance that Jennifer's talking about and that is the subject of today's discussion. It does include all of the guidance they have offered. So it's nice, it's very cumulative and I agree. I felt that the. It's in an FAQ format and I felt that the questions that were presented were those exact questions that our employers are asking. So, you know, let's give our listeners a little, a little sample. So, you know, one of the things that you talked about, Jen, is it is okay to mandate, but we need to keep in mind the obligation to provide a reasonable accommodation to somebody who may have a disability or a medical condition, a protected characteristic or a religious belief or practice. And this is really important point to talk about. So what did the DFEH say?

So they basically said, look, you need to treat this like any other accommodation situation. You need to figure out what the basis is for someone asking for an exception to your mandatory vaccination program, and then you need to assess it. Now, the assessments can be a little different depending on whether you're dealing with a disability or religious belief or practice. For example, they said specifically that you're first going to look at this idea of, okay, how can we accommodate? What can we do? You can get medical documentation about a disability. You can ask for some clarification about somebody's religious belief or practice. But it all comes down to what are the accommodations that we can do? The first question we have to look at is, all right, if the person doesn't want to get the vaccine or be vaccinated, then what other options are available? Can they continue to work at home? So you look at these other accommodations that might be available in any sort of reasonable accommodation situation. What I thought was interesting is they specifically said, with respect to religious beliefs and practices, that you couldn't put somebody in a room, you couldn't segregate them. But they didn't say that about disability. It's very interesting to me that they took those two different approaches.

And also, one of the things that I wanted to point that I felt was worth pointing out as well, when they talk about a reasonable accommodation, and I felt that they described it very eloquently as eliminating the conflict between the religious belief or practice and the vaccination requirement. And they describe some of the examples of a reasonable accommodation could be job restructuring, job reassignment, or modification to work practices.

Right. Which are, of course, the same things we always look at in regular accommodation analysis. But I love the way the DFAH put this, and I think the word eloquent is right, Erica. They really, I think, brought to life a little bit what is the interactive process. They even talk about undue hardship. Right. You know, what does it mean to have an undue hardship? Now, here's the point that I don't hear anybody talking about that I'm worried about. The reason we're even having this discussion is because COVID 19 has been determined to pose a direct threat to the workplace. Right. So this is why we can mandate a COVID 19 vaccine or vaccination, but not, for example, a regular flu shot, because this direct threat analysis. Now, the more people who get vaccinated and the closer we get to herd immunity, the less strength that argument is going to Have. So I'm very concerned about employers who think they can make a one time decision. It's a direct threat.

Literally.

What that means is I don't have to allow you to work on site without being vaccinated. That is not gonna be the case three months from now. And that worries me.

And I think another thing to point out as well as we work through this discussion is, okay, yes, we can go ahead and require, yes, we need to reasonably accommodate an individual with a protected characteristic. If someone says, no, I don't want to take the vaccine, things are a little bit different.

I don't even have words to describe. It's not what you think that you could do. One of the things that DFEH says is if someone says they're uncomfortable or they don't trust the vaccine is safe, must the employer reasonably accommodate? Of course, the DFEH says, well, if there's no disability reason or there's no sincerely held religious beliefs and there's no requirement under FEEHA to reasonably accommodate. But then it starts to go into, well, can you discipline what happens if there's a resistance to it? It's not that black or white.

It isn't. And I think that that could be seen as protected activity. Somebody saying, I don't want to be vaccinated. You know, I mean, I have a friend who told me, look, I know what that MRNA vaccine is all about. They're putting data in your body, they're going to track you when you get that. And I was like, wow, really? You believe that? Yes, I do. I mean, people have some very strong views about this whole vaccine process. And I think it's very hard for employers to not sort of step in the piles along the way. If they are going to go with this mandated process. They have to be really organized with, really deliberate about what they're doing, have really well written policies and practices. Because what the DFH didn't say was, okay, fine, great, you don't have to accommodate that person. What do you do with them? What leave are they entitled to? Can you fire them? Not clear.

And that's the important part for our listeners to understand. As far as if you require and you have an employee resist.

It's important to think about these scenarios before you roll out your plan and talk to legal counsel about what do you do and what are some of the scenarios that you need to look out for. Because that is somewhat of an uncharted territory and one that could create a number of liability risks for the employer.

That's right. And one of the things that I thought was really helpful about the new guidance is that the DFEH said, go ahead, ask for proof of vaccination, because it's not really a medical record. The good news is just the little vaccine card that you get when you get your vaccinations. There's no medical information revealed on that card. That part is good. Employers can certainly suss out who's been vaccinated and who hasn't. But what to do about the ones who aren't being vaccinated is a big issue. And for that reason, a lot of our clients are saying, nevermind, I don't want to do mandated vaccines. I'm going to do a vaccine program. I'm going to make it easy for people to get it. If I'm a big enough employer, I may even offer it on site, obviously free of charge. I'm going to do what I can to encourage without running afoul of rules. For example, I have a client who said I'm going to give five days of vacation to people who get vaccinated. Well, here's the problem. If somebody can't be vaccinated because of a medical issue or chooses not to be vaccinated because of a religious belief or practice, you're discriminating against them by not giving them five days. So you're gonna have to give it to everybody anyway. So we've got to think about sort of how to approach the situation in a pretty methodical, pretty systematic way, I think, 100%.

And you raise that issue of incentivizing vaccinations. And we've heard a lot about different companies incentivizing vaccinations. And it's really important, folks, if that's something that you are considering, please talk to legal counsel. Because we don't have anything in bright shiny lights that says whether it's okay or it's not. But there's certainly enough out there to suggest that it's very risky to do.

So. Jennifer, since we're talking about vaccines right around the time that the DFEH rolled out their guidance, the CDC also issued some relaxed rules around individuals who have received their vaccinations and whether or not they need to continue masking up and social distancing. Does that have any impact on California workers right now?

Well, I think it does because the CDC is sort of the overall national.

Sort of watchdog for what we should all do to stay healthy. I think the California Department of Public Health and the governor will fall right in line. What's interesting is the CDC said, look, just because you've been vaccinated doesn't mean you don't have to wear a mask. Doesn't mean you don't have to. Socially distance now they also said if everyone in an office has been vaccinated, they're at least two weeks after their last vaccination or their only one if they only let's say they did. J and J. You can actually be in the office without a mask, but you're still supposed to. Socially distance I got to be honest, Erica, I don't know if this is ever going to go away.

I think we may always be thinking about just wearing a mask to the grocery store as good measure. I've always grabbed the wipes and wiped off the cart, but I don't even use the cart now. Like now I have my own little bag. I put my groceries in there. It's just, I think in a way many things have changed forever.

Certainly that is true and I think that there's a lot of individuals who would certainly agree with you on that.

But going back to the CDC guidelines, I just want to make sure that our listeners are clear that at this point California has not adopted those relaxed CDC rules and we still have the Cal OSHA temporary standards and all of the workplace safety requirements which do still include masking up at work, socially distancing, providing sanitation products and ventilation and all of those other wonderful things that we've been talking about.

No, Erica, you're absolutely right. And you know, one of the things, it goes back to every employment law we've ever discussed, right? If you have a federal law and a state law, you've got to follow the one that is most protective. California is always more protective. The reason I think the CDC guidance is interesting is because we usually do follow it ultimately. But there's a lag, there's a time lag. It's hard for multi state employers who have operations in California, operations in Nevada, operations in Utah. They're trying to figure out what to do. In many of those states there is no state guidance. They just follow what the feds are doing. California is always going to be more challenging on that end.

Always. It always is. It just, just keeps on shining.

Well and you know, I just think about all the laws that became effective January 1st. You know, we've all reviewed the legislation, the proposed legislation for this year. There's so much going on and I think so many of us as employers, I mean, I'm a small employer, we're just hanging on day to day. Right. You know, I've been really lucky because, of course, the pandemic created a lot of employment law work, so our work hasn't taken that much of a hit overall. But there have been periods during this pandemic where it's been really uncomfortable. And it's so interesting for those of us who are doing this every day to try to predict where are we going to be in six months, where are we going to be in a year? I started planning spring break this year and I thought, what am I doing? I can't go anywhere. But it was just a habit of like, okay, well, what am I going to do? You know, Ellis School has very strong rules about where you can travel and what you do. And I think they're appropriate. So it's just interesting, Right. We're just going to have to see where we end up.

I agree. I agree. One of the growing themes that I've definitely been following is to be nimble, to be flexible, and that's still true. We're not out of this yet. And it's definitely something that's keeping everybody on their toes. Well, Jen, thank you so much for joining me today on a very relevant and important topic. It's always a pleasure.

It's always my pleasure to be here. Erica, thank you so much for having me.

And thank you all for joining us on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.

SAM.