With a growing number of employees passing the fully vaccinated threshold, government regulators are actively reevaluating current health and safety standards.
In keeping with the recently updated U.S. Centers for Disease Control and Prevention health and safety restrictions, the California Department of Public Health (CDPH) has eased quarantine restrictions for fully vaccinated asymptomatic employees in non-healthcare workplaces.
Following CDPH’s lead, the state's Division of Occupational Safety and Health, or Cal/OSHA, will no longer require that fully vaccinated asymptomatic individuals be excluded from the workplace.
However, despite the lessening in quarantine rules, other CDPH and Cal/OSHA requirements such as the wearing of face masks and testing protocols remain unchanged.
Specifically, updated CDPH and Cal/OSHA (Emergency Temporary Standard, or ETS) guidelines include the following changes regarding fully vaccinated employees:
- Fully vaccinated employees who have COVID-19 or have been exposed to COVID-19 and exhibit COVID-19 symptoms must be excluded from the workplace.
- Fully vaccinated employees who have been exposed to COVID-19 and are asymptomatic need not be excluded from the workplace.
Under the updated CDPH guidelines, an individual is considered “fully vaccinated” two weeks or more after receiving:
- A single-dose vaccine (Johnson & Johnson/Janssen); or
- A second dose of a two-dose vaccine series (Moderna or Pfizer-BioNTech)
As reported here, additional modifications may be on the horizon as the Cal/OSHA Standards Board is set to meet on May 20, 2021, to consider and likely approve the following ETS amendments:
- Physical distancing requirement of 6 feet would no longer apply when employees are fully vaccinated.
- Housing requirements would no longer apply when all employees in the housing are fully vaccinated.
- Transportation requirements would no longer apply when employees are vaccinated.
While the easing of existing COVID-19 regulations for fully vaccinated employees is a step in a positive direction, it also raises additional questions for employers.
Legal issues with vaccination inquiries
Current Department of Fair Employment and Housing and Equal Employment Opportunity Commission guidance confirms an employer does have a right to inquire about an employee’s vaccination status (absent any disability or religious-related inquiries).
However, given the confidentiality and disability-related issues that may arise out of such an inquiry, and the fact that there is no established standard for proving vaccination status, employers may well wonder whether actual proof is necessary.
Nonetheless, as part of the employer’s ongoing duty to provide a safe and healthy workplace, employers implementing proof of vaccination protocols may want to consider the following:
- Employer-created acknowledgment forms asking employees to provide and verify the minimum vaccination information necessary (e.g., date(s) of vaccination, location, and type of vaccination)
- Vaccination card showing name, date(s) of vaccination, location, and type of vaccination (e.g., CDC issued card or photo of vaccination card stored on an electronic device)
- Other reasonable evidence in lieu of a vaccination card (e.g., proof that the employee has received a COVID-19 vaccination from a pharmacy or their own healthcare provider - so long as the employee does not provide any medical information as part of the proof).
Employers will want to proceed with caution and be mindful of taking a hardline when it comes to requiring employees to prove their vaccination status. Reprimanding an employee for declining to disclose their vaccination status could trigger an employer’s duty to engage in an interactive process to determine if the refusal is based on disability or religious grounds.
For questions or additional information, contact Teresa McQueen, Western Growers Corporate Counsel.
[Resnick is senior vice president and general counsel for Western Growers.]