With Gov. Gavin Newsom’s grand reopening of the state of California on June 15, new questions are being raised for the returning workforce, the most notable question being whether employers will be allowed to mandate that their employees take one of the COVID-19 vaccines.

Karen P. Mejia

But what exactly makes the COVID-19 vaccines any different than other vaccines that are already being required by schools and health care employers? It is not unique for health care workers to be required to be vaccinated against most infectious diseases for the protection of patients and workers alike.

However, the COVID-19 vaccines are currently under Emergency Use Authorization (EUA) only. This means that the Food and Drug Administration (FDA) has authorized the vaccine for emergency use in order to facilitate its availability while studies continue to be conducted on its safety and effectiveness. Under normal circumstances, the FDA would require substantial evidence of the safety and effectiveness of the vaccine for approval.

However, in a public health emergency, the FDA can also allow for a product to enter the market so long as the benefits outweigh the risks. This is something that the FDA rarely does, but the global pandemic has presented extreme circumstances.

"The vaccines met FDA’s rigorous scientific standards for safety, effectiveness and manufacturing quality needed to support emergency use authorization," the Centers for Disease Control and Prevention stated on its website in an effort to help persuade the public that the vaccines are safe and effective.

We also have to keep in mind that both Pfizer and Moderna have already applied for full authorization with the FDA, which will likely take a few more months. So what exactly does this all mean for individuals who are yet to be vaccinated and for employers that want to require vaccinated workers to return to work?

With the ever-changing rules requiring the use of masks and now a lifting of social distancing requirements in indoor spaces, it becomes difficult to navigate what is expected of employers.

According to the Equal Employment Opportunity Commission's (EEOC) updated guidelines addressing this question, the answer is yes, an employer can require its employees to be vaccinated.

"Federal EEOC laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as (the) employer compl(ies) with the reasonable accommodation provision of the ADA and Title VII of the Civil Rights Act of 1964 and other EEOC considerations,” the EEOC said in a written statement. “From an EEOC perspective, employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

The EEOC also pointed out that "in some circumstances, reasonable accommodations" be provided for "employees who, because of a disability or a sincerely held religious belief, practice or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer's business."

This also raises questions of whether employers that are abiding by the CDC guideline and allow their vaccinated employees to go without a mask but require unvaccinated employees to wear a mask could be asking employees to disclose their medical information. After all, Cal/OSHA has issued written rules and regulations calling for employers to do exactly that: require unvaccinated employees to wear masks and to provide them with N-95 masks if they do not have one and ask for one.

The Cal/OSHA website also states that documentation is required for fully vaccinated employees to work without a mask indoors. Employers can achieve this by keeping records of the following:

• Employees self-attesting to vaccination status in writing.
• Employees provide proof of vaccination via vaccine card, an image of vaccine card or a health care document showing vaccination status.
• Employee provides proof of vaccination in some other form.

If employees don’t want to provide this information, Cal/OSHA says they can wear a mask. And nothing bars an employer from requiring all employees to wear masks, regardless of vaccination status.

For the vaccinated, a stroll down social media lane would prove to demonstrate that many people don’t take issue with disclosing their “vaccinated” status via the “vaccine selfie” that we’ve all seen on the news, Twitter, Facebook, Instagram, TikTok and elsewhere.

There are, of course, other state, federal and even local laws that need to be considered when with regard to vaccinations. However, the ever-changing guidelines from the CDC, the EEOC and Cal/OSHA make it difficult to provide clear-cut answers to some of the more complex questions.

As all three of those groups begin to relax COVID-19 protocols, now news reports are showing that public health officials are becoming more and more concerned about COVID-19’s delta variant, as it has now become the dominant viral strain throughout the nation.

In the coming months, we will get real data about how quickly the delta variant and its virulent cousins are spreading throughout the population, which could potentially persuade even more people to get vaccinated.

So for the time being, employers will just have to wait and see how this regulatory landscape changes, as public opinion about the vaccines seems to be evolving. After all, concepts that are shocking at first tend to dull and become acceptable as time goes on, and that could happen with the vaccines as well.

Karen Mejia is an associate attorney with Bradford & Barthel’s Woodland Hills office. This entry from Bradford & Barthel's blog appears with permission.