What can California workers expect from Biden’s COVID vaccine mandate? Here’s what we know
More COVID vaccine mandates are on the way for California.
President Joe Biden last week rolled out his plan to get more Americans vaccinated by requiring federal workers and their contractors to get the shots. Health care workers in facilities that receive Medicaid and Medicare reimbursements are also required to be fully vaccinated.
Most significantly, Biden directed the Occupational Safety and Health Administration, known as OSHA, to create a rule requiring employers with 100 or more employees to mandate their workers be fully vaccinated or get tested at least once a week.
The rule has yet to be drafted. It’s also unclear whether California will have the same rule as the rest of the country. Because California has its own OSHA, it can create its own mandate, as long as it’s as strict as the federal regulation.
The Sacramento Bee asked several legal experts what the vaccine mandate could look like in California, as well as what workers can expect to see.
What will Biden’s vaccine mandate look like?
Cal-OSHA has three ways to adopt the federal mandate, its standards board’s executive officer, Christina Shupe, told members Thursday, Sept. 16.
The state can either:
▪ Adopt the federal mandate as is
▪ Incorporate the mandate into the state’s revised COVID workplace rule, which is expected to be finalized by December
▪ Create a mandate on its own, as long as it’s as strict as the federal regulation
In June, the Cal-OSHA standards board revised its COVID workplace rule to not require fully vaccinated Californians to wear masks. But the revision process was marked by weeks of confusion and debate, including a meeting where board members reversed the votes they cast just minutes before.
That experience may push the board to just adopt the federal mandate as is, said Hannah Sweiss, a Los Angeles-based attorney at Fisher Phillips who represents employers.
The state can expand vaccine mandates in other ways. The California Department of Public Health can issue a public health order, as it had done so in the past for school staff. Gov. Gavin Newsom also could issue an executive order and codify it later through Cal-OSHA rulemaking, said Ron Zambrano, who represents employees as the employment litigation chair at a Los Angeles-based law firm West Coast Trial Lawyers.
When can we expect to see the mandate?
Shupe expects the federal mandate to be finalized in several weeks. The rule has to be written and go through executive branch review, which could take about three months, according to lawyers at the Washington employment law firm Conn Maciel Carey in their blog post.
Once the federal mandate is finalized, Cal-OSHA will have 30 days to respond.
Expect the mandates both at the federal and state levels to give some time for workers to get fully vaccinated, said Sarju Naran, the chair of the employment law group at San Jose-based firm Hoge Fenton.
“There are deadlines that are out in the future that gives people enough time to wrap themselves around the concept and do it,” he said.
What if I work from home?
Workers who completely work from home will not likely fall under the mandate even if they work for big companies, Sweiss said, citing a webinar held by federal officials last week.
If you work in a small branch of a large company, you would fall under the mandate as long as you work for a company with 100 or more employees, Sweiss said.
“There’s nothing stopping those people from being transferred to other places,” Zambrano said.
How will testing work?
Given Biden’s push to make in-home testing more affordable, such a method is expected to be permitted as a way to meet the federal requirement, said Arlene Yang, a San Diego-based lawyer who represents employers at Meyers Nave.
But Sweiss also expects that employers will have to pay for the cost of testing their employees, given Cal-OSHA’s past and current rules.
If your company requires testing and there is no designated site, you should ask which location or vendor are acceptable, to avoid disputes over cost, wrote California Labor Commissioner’s Office in its FAQ page.
Will I get paid time off to get vaccinated? Tested?
California’s COVID-19 paid sick leave is scheduled to end on Sept. 30. Sweiss expects workers to be able to get the time off to get vaccinated or tested.
“If it’s a condition or requirement of employment,... it should be paid time,” she said.
The California Labor Commissioner’s Office in its FAQ page said it believes the time workers spend getting testing or vaccination constitutes “hours worked” because they’re subject to the control of their employers during the period.
Workers should also be entitled to reimbursement for traveling to get tested or vaccinated, the office wrote.
How will this measure be enforced?
The federal OSHA could issue a fine of up to $14,000 to employers who don’t comply, although it’s not certain whether that is per company or per worker.
Cal-OSHA could also issue citations. The largest fine Cal-OSHA has levied so far on COVID-related matters was $421,880 on San Quentin State Prison, but a bill on Newsom’s desk could drastically increase how much Cal-OSHA can issue in its citations.
Can those who quit their job due to the mandate qualify for unemployment insurance?
Not likely.
In a statement, the Employment Development Department in charge of unemployment insurance said benefits are generally available to those “who lose work through no fault of their own.”
Naran said because the mandate is coming from the government, not employers, it would be hard for workers to argue that they were fired by their boss.
“Once the vaccine mandate goes on the federal level, I don’t think an employee can say it’s employer’s choice, not mine,” he said.
Will this mandate stand up in court?
Vaccine mandates have traditionally been held up in court, Sweiss said, as long as they allow for medical or religious exemptions.
The argument that the mandates infringe one’s rights hasn’t made much headway, she said, because employment is a choice — They can potentially work somewhere else.
The federal OSHA may face some legal challenges. Some of its previous emergency regulations were overturned in courts because OSHA did not justify why its rule was necessary to protect workers from “a grave danger.”
The same or similar mandate may have a better chance of standing in California. In March, a state judge upheld California’s COVID-19 emergency workplace rule, saying such measure protects worker and community health.
This story was originally published September 20, 2021 at 5:00 AM with the headline "What can California workers expect from Biden’s COVID vaccine mandate? Here’s what we know."
