Yes, your boss may require you to receive the COVID-19 vaccination.
Will they? This is a more complicated answer, influenced by who you are, what you do, where you work and how much you are needed. And there are exceptions.
It is still early, of course, with insufficient doses for most working Californians. But as vaccine distribution expands, companies are rushing to design the policies needed to open, get back to business and prevent fatal contagion in the workplace – without losing valuable employees who refuse to take a chance.
“In general, everyone is trying to do the best they can to keep the sites safe and operating effectively,” said Bay Area labor attorney Bill Sokol. “It means trying to be as creative as possible and, at the same time, making sure the job gets done.”
The Occupational Safety and Health Administration requires employers to provide a safe workplace. Private companies have the right to dismiss anyone, as long as they do not discriminate on the basis of race, sex, age and other protected categories.
And while there are currently no laws or regulations that directly address mandatory COVID-19 vaccines, there is legal precedent. Iin December, the U.S. Equal Employment Opportunities Commission issued guidelines that employers can require workers to receive a COVID-19 vaccine before physically returning to the workplace – although workers may apply for medical or religious exemptions.
In response, employers are rapidly adopting a broad spectrum of policies, which vary by risk.
Vaccines are generally mandatory for anyone working with children and the elderly – where infecting a client or colleague can have tragic consequences.
They are generally not required by companies whose workers can distance themselves socially, wear masks or work remotely, such as Facebook, Google and other technology companies.
But in that vast middle ground – where many of us spend our 9-5 days – most employers are taking a compromise. Although they do not require a jab, they are encouraging vaccination through an incentive and punishment approach that combines education, recommendations, incentives and restrictions.
For example, University of California medical centers maintain a list of workers who have not been vaccinated. These workers must also submit a “Vaccine Refusal Statement”, wear personal protective equipment and can be transferred.
There is precedent: vaccines for other infectious diseases are necessary to protect public health. Many healthcare companies require flu shots. Schools require measles, mumps and rubella vaccines. Tuberculosis tests are usually required for jobs in health care, education and social services.
But critics note an important difference: the COVID-19 vaccine has not yet been approved by the U.S. Food and Drug Administration; it is only “authorized”, pending further study. Critics say they will hold employers legally responsible for any adverse reactions.
Lawyers offer two refutations. This regulatory distinction is unlikely to matter to the courts, they say. And any reaction, if linked to the vaccine, would simply trigger a labor claim.
This does not mean that your employer has carte blanche to fire you. If you claim a medical or religious exemption, they must first show that you pose a direct threat to the workplace. Next, they must consider whether reasonable accommodation – such as working remotely – is possible.
These accommodations are easy in some jobs; in others, they are impossible. In Hollywood, for example, “if your specific duty is to act in a crowd scene in a film, there is no way to accommodate it,” said Sokol. “On the other hand, if your job is to be a film editor, you can stay at home.”
This week, a major survey by Littler, the largest employment and labor law firm representing the administration, found that most employers are unlikely to require the COVID-19 vaccination.
Almost half, or 48%, of those surveyed have already decided against the requirement; 43% said they are still considering and about 7% are demanding or planning, once vaccines are readily available or fully approved. Of the reluctant companies, 67% said they were concerned about the impact of the mandate on employee morale, company culture and staff. Most hoped to simply encourage vaccination, while offering remote work and maintaining security protocols.
“Most employers depend on their workers,” said Sokol. Consider a car dealership, he said. If he loses an unvaccinated mechanic, “all of a sudden, they have an open stall and can’t keep up with the business.”
Surprisingly, the military does not need to be vaccinated, although that may change once the FDA has issued the formal license.
Can the employer be sued if one of his unvaccinated workers infects a client, client or colleague? Although possible, it is difficult to imagine, said Sokol. In order to be successful, the plaintiff would need to prove that he fell ill for a specific person in our virus-filled world. This is a difficult task.
While at least 10 states have proposed bills that prohibit private employers from forcing their workers to be vaccinated, such efforts are poorly designed and unwise, said NYU School of Medicine bioethicist Art Caplan.
“Workers are entitled to a safe workplace,” he said. “Customers may also want a secure environment and may prefer companies that offer it.”
Concerned about the health of their patients, the elderly care companies Atria Senior Living and Aegis Living are demanding vaccines for workers as soon as they are widely available. They make exceptions for workers who are pregnant or have other compelling reasons to refuse.
“Getting the vaccine, in our opinion, is the best act of helping our fellow humans,” said John Moore, CEO of Atria Senior Living, which requires all employees at its 43 California facilities to take two doses of the vaccine by May. 1
Home care agencies, such as the Home Health Bay Area, which sends caregivers to the bedside, say they are now assessing the risks and benefits of this policy.
But places that cater to independent seniors, who don’t share housing, are taking a wait-and-see approach. With apartment-style communities for active seniors, Covia is not requiring vaccinations from the team. Neither does the Walnut Creek Rossmoor, with 6,700 homes on 1,800 acres, although that may change in the future, said CEO Tim O’Keefe.
Some families that hire babysitters are adding a “COVID-19 Security Protocol” clause to their contracts, requiring vaccines and testing, according to The Nanny League, a Los Angeles-based company that provides daycare and tutoring for families of first line. Adventure Nannies, which serves active and traveling families, says it also receives requests for help to care for vaccinated children.
COVID injections can be requested or required for anyone looking for a job as a chef, housekeeper, property manager, nanny or nanny at The Help Company. Most job seekers are vaccinated voluntarily, according to company spokeswoman Melissa Jensen.
But some companies are trying to take a softer approach.
Starbucks offers up to two hours of paid time off for each photo. At Amtrak, the vaccinated employee receives a bonus equivalent to two hours of pay, in addition to paid time off by appointment and absences due to side effects. Facebook, like other technology companies, has less contact with the public and does not require vaccines. As workers begin to return to the office after July, “we have a series of protocols in place that include testing, physical distance, wearing masks and other best practices,” said spokeswoman Chloe Meyere.
Most major medical centers – including Cedars Sinai, Stanford, Kaiser, John Muir and UC San Francisco, Los Angeles and Irvine – are recommending, but not requiring vaccines. Masks are required in all installations.
Voluntary adherence has been high, they report. So far, vaccines have been administered to about 70% of Stanford Medicine’s workforce; 71% at UCLA; 77% at UCSF; 80% at John Muir and 89% at UC Irvine. The rate is much higher among employees with regular contact with the patient – for example, 97% of UCLA resident doctors are vaccinated.
Once the photos are available, most school districts – including Santa Cruz, San Mateo, Santa Clara, Alameda, Contra Costa and Orange counties – say they will only require employees to participate in COVID-19 surveillance tests, at least least once every two months, as required by the state.
The only big exception is Los Angeles, where Superintendent Austin Beutner says that once the COVID-19 vaccines are available, teachers and students will have to be immunized before they can return to campus. With 25,088 teachers and 50,586 other employees, it is the second largest employer in Los Angeles County, after the county government.
“A vaccine can reduce the risk for teachers, cafeteria workers, bus drivers, librarians and others,” he said, adding that a tuberculosis vaccine is needed, although COVID-19 poses a much greater threat. “We have a responsibility to create an environment that is as safe as possible.”