Effective May 3, 2021, the California Department of Public Health issued COVID-19 Public Health Recommendations for Fully Vaccinated People, applicable to non-health care settings, in response to the Interim Public Health Recommendations for Fully Vaccinated People, recently issued by the Centers for Disease Control and Prevention (“CDC”). The California Department of Industrial Relations (“DIR”) quickly followed suit, issuing several vaccine-related updates to its COVID-19 Emergency Temporary Standards Frequently Asked Questions, as did the Los Angeles County Department of Public Health, issuing a revised Reopening Safer at Work and in the Community for Control of COVID-19 order (“Los Angeles Order”), with similar updated guidance.
For the time being, however, there is only one change relevant to fully vaccinated employees[1] in the workplace that is permissible under both State and Los Angeles County rules: Fully vaccinated workers do not need to quarantine following a workplace exposure, as provided in the COVID-19 Emergency Temporary Standards (“COVID-19 ETS”), if they remain asymptomatic.[2] However, employers must continue to exclude fully vaccinated employees from the workplace if they (1) are COVID-19 cases (i.e., tested positive or were diagnosed with COVID-19) or (2) there has been a workplace exposure and they exhibit COVID-19 symptoms.
Face coverings must still be worn by fully vaccinated employees to the same extent as non-vaccinated employees. And physical distancing must be maintained.
The Los Angeles Order states that employees in a fully vaccinated workplace may forego physical distancing (while still wearing face coverings). Proof of vaccination is required.[3] However, before employers begin mandating vaccinations and pushing desks back together, they should consider the following:
- First, California does yet not recognize this physical distancing exception, and employers must comply with the more restrictive rule. The DIR has stated that the COVID-19 ETS must still be followed for fully vaccinated employees with the sole exception for quarantine noted above.[4] (See FAQ No. 1, under Vaccines, and Nos. 9 and 12 under Testing.) This includes maintaining physical distancing in office workspaces. So, following the relaxed physical distancing permitted by Los Angeles County would violate the State’s COVID-19 ETS.
- Second, the Los Angeles Order reflects that even if all employees are vaccinated, physical distancing must still be maintained for any employees who interact with visitors, such as delivery personnel, vendors, or customers.
- Finally, both the federal Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have issued guidance reflecting that exceptions to any mandatory vaccination policy may need to be made as reasonable accommodations for disability and religion (see the EEOC Guidance and DFEH Guidance). Additional exceptions may also merit consideration.
Accordingly, even if California updates its regulations to make an exception to physical distancing requirements for fully vaccinated employees, employers will want to consider whether this decision is right for their workplaces.
In light of Los Angeles County’s rules regarding proof of vaccination, for fully vaccinated employees who have shown proof of their vaccination against COVID-19, employers should create and keep written records documenting that each of these employees has shown them acceptable proof of full vaccination. According to Los Angeles County, employers need not keep a copy of the proof of full vaccination shown. However, because the State has not yet weighed in on this specific issue, it would be prudent to keep a copy of the documentation provided by employees confidential, as with any other medical record.
What California Employers Should Do Now
- Employers should consider their approach to COVID-19 vaccinations, including whether to (i) require vaccination for all or some employees, (ii) encourage vaccinations, or (iii) not take a position on this issue.
- Employers that do plan to require vaccinations should think through how exception requests will be considered and handled, and how medical privacy will be handled. Not only do vaccination records need to be kept private, but employees also have a right to privacy in their medical decisions, such as to accept or decline vaccination, and in their reasons for doing so.
- Visit Epstein Becker Green’s Coronavirus Resource Center for additional information and links.
ENDNOTES
[1] Individuals are considered “fully vaccinated” for purposes of these guidances two weeks or more after they have received the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks or more after they have received a single-dose vaccine (Johnson and Johnson/J&J/Janssen).
[2] The San Francisco Shelter in Place Order has also been updated as of May 6, 2021, to recognize this quarantine exception for fully vaccinated employees, taking the approach of just linking to the CDC guidance.
[3] Los Angeles County has set forth the following as acceptable proof of full vaccination: a photographic identification and the individual’s vaccination card (which includes the name of person vaccinated, the type of COVID-19 vaccine provided, and date last dose administered) OR a photo of the individual’s vaccination card as a separate document OR a photo of the individual’s vaccine card stored on a phone or electronic device OR documentation of full vaccination against COVID-19 from a health care provider (which document includes the name of the person vaccinated and confirms they are fully vaccinated for COVID-19).
[4] The expiration date of the COVID-19 ETS is October 2, 2021, unless amended or extended.
[View source.]
