[COLUMN] Employee rights and California mandates to get a COVID vaccine

Q: I HEARD California is requiring workers to be vaccinated. My employer just sent a memo to everyone saying that employees must be vaccinated in order to be allowed into the worksite. Can my employer force me to get vaccinated?

A: The general answer is “yes.” This is especially true and urgent for certain types of workers. California’s Department of Public Health (CDPH) recently 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:

1. Healthcare workers include all paid and unpaid individuals who work indoors and provide care to patients, or whom patients have access to. These workers are nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the health care facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).

Healthcare workers may be exempt from vaccination only upon providing their employer a declination form, signed by the employee stating either of the following: (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine due to Qualifying Medical Reasons (supported in a written statement signed by a physician stating that the employee qualifies for the exemption and for how long).

An unvaccinated exempted worker must meet the following requirements when entering or working in such facility:

1. a) Test for COVID-19 under qualified conditions twice weekly for workers in acute health care and long-term care settings, and once weekly for such workers in other health care settings.
2. b) Wear a surgical mask or approved higher-level respirators, such as an N95 respirator, at all times while in the facility.

Healthcare facilities required to vaccinate their workers must be in full compliance with the Order by September 30, 2021.

1. School workers include all paid and unpaid adults working in public and private schools serving students in transitional kindergarten through grade 12 and excluding home schools, child care and higher education facilities. These workers may include certificated and classified staff and volunteers at a school campus supporting school functions.

Required schools must verify the vaccine status of all their workers. According to the CDPH, only the following documents may be used as proof of vaccination:

1. COVID-19 Vaccination Record Card (issued by the government or WHO Yellow Card) which contains the name of person vaccinated, type of vaccine provided and date last dose administered; OR
2. Documentation of COVID-19 vaccination from a health care provider; OR
3. Digital record that includes a QR code that when scanned by a SMART Health Card reader displays the client name, date of birth, vaccine dates and vaccine type; OR
4. Documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.

Asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo COVID-19 testing at least once weekly. These workers must also observe all other infection control requirements, and are not exempted from the testing requirement even if they have a medical contraindication to vaccination, since they are still potentially able to spread the illness.

Schools required to vaccinate their workers must be in full compliance with the Order by October 15, 2021.

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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.]

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