Private employers may soon require all workers be Covid vaccinated

Q:        I work for a private company in California that is not in healthcare or education. My employer just sent a company-wide memo requiring that all employees must be vaccinated in order to be allowed into the workplace. I read that vaccination is only mandatory for healthcare and school workers. Because I don’t work in healthcare or in a school, can I legally refuse to be vaccinated?

A:        Unless you fall into very limited exemptions, the answer is a probable “no.” In other words, unless you fall under one of two exemptions discussed below, your private employer may legally require you to be vaccinated.

As discussed in this column last week, California’s Department of Public Health (CDPH) released two Orders on mandatory vaccinations for workers in healthcare and schools. These workers are required to complete vaccinations or submit to regular testing if cannot be vaccinated.

In late July of this year, the State of California also implemented a first-in-the-nation standard that requires all stateworkers and workers in high-risk congregate settings (such as adult and senior residential facilities, homeless shelters, and jails) to either show proof of full vaccination or be tested at least once per week.

California leads the nation in vaccinations with over 44 million doses administered and 75 percent of the eligible population having received at least one dose. However, Californians who refused to be vaccinated are being hospitalized and dying. The increase in hospitalizations and death is mostly due to the Delta variant, which is more contagious and kills people faster. Because this has become “a pandemic of the unvaccinated,” California officials are calling on all employers, including local government and private employers, to require their employees to be vaccinated against the coronavirus or be subject to regular testing.

This “call” is, for now, a recommendation, not a requirement. The counties of San Diego County, San Francisco, Contra Costa and Santa Clara are also among those urging private employers to get their workers vaccinated or regularly tested.  Some private companies such as Google, Facebook, Disney, and Walmart now require their workers to be fully vaccinated. With the recent formal approval by the Food and Drug Administration of the Pfizer-BioNTech COVID-19 Vaccine as a vaccine for the prevention of COVID-19 disease in individuals 16 years of age and older (replacing the emergency use authorization granted to it last December), it is anticipated that more employers may soon implement a mandate.

Despite the sweeping mandates, an employer’s vaccination requirements must not discriminate against employees based on a protected characteristic, such as disability or religion. Thus, the following employees may be exempt from vaccination (though they may still have to submit to periodic testing):

1. Employees with a Qualifying Medical Reason. These employees may request reasonable accommodation to be exempt from vaccination. They may be asked to provide a written statement signed by a physician stating that they qualify for the exemption and for how long.
2. Employees with a sincerely-held religious belief or practice. An employer who has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice, may require the employee to provide additional supporting information.

Employees should note that even if they properly fall under one of the above exemptions, the employer may still legally decline employment if accommodating the exemption imposes an undue hardship on the employer or poses a direct threat to the health and safety of others.

The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]