CDF Partners Mark S. Spring and Kimberly Foster answer questions relating to California employers mandating vaccines in the workplace for investigator reporter Julia Watts at KOVR-TV | CBS Sacramento.
To view the live recording, click on the following: Getting Answers: Who Can Penalize You For Not Getting Vaccinated?
Excerpt of interview:
Can Your Employer Require Vaccinations?
“I’ve never had to provide my vaccine information to any employer I’ve ever had,” Amy pointed out. It is true, outside of healthcare settings, employer-required vaccines have been rare. Labor attorneys Kimberly Jansen and Mark Spring of CDF Labor Law represent employers. “They can’t require you as an individual to have a vaccine, but they can require their employees who will be present in the workplace to be vaccinated,” said Jansen. Absent a clear legal statute, Jansen and Spring point to state guidance that says employers can require an FDA-approved vaccine.
Can an employer require you to get vaccinated before the FDA approval?
“I believe the answer is yes,” Jansen responded. She says federal guidelines for the vaccines’ Emergency Use Authorizations don’t carry the weight of the law, and there’s no state law prohibiting it. Though, we won’t know for sure until there’s a court ruling. “There is nothing in California prohibiting a mandatory vaccine program at this time,” Jansen said. But, employers must provide “reasonable accommodations,” like working from home, for people with disabilities or “sincerely held religious reasons” that prevent them from getting the vaccine.
What is required for a religious exemption?
“I think it is going to be a difficult bar for people to prove,” Spring said. He said most major religions don’t have stated opposition to vaccines, which could be required for an exemption.
“Can remote workers be required to be vaccinated?”
The experts said that’s unlikely. “The basis for mandating vaccines is safety,” Spring said. So, if you’re working from home, you’re not creating an unsafe work environment. However, the expert's stress, your employer does not have to let you work from home unless you have a medical or religious exemption. “It’s the employer who can require the work location,” Spring said. Based on current guidelines, without an exemption, he says they can likely require you work from the office.
“Can you be fired?” Amy asked. “My position is, yes,” Jansen answered. Jansen says that is because California is an at-will state and there is no law prohibiting mandatory vaccinations. And yes, she says your employer can require proof of vaccination.
If someone is injured by the vaccine, can they hold their employer accountable?
“They probably can, but it’s not going to be through the court system. It will be through the worker’s comp system,” Spring said. While rare, according to federal guidance, adverse reactions to required vaccines are considered work-related injuries and they are covered under worker’s comp. But you’d likely have to file a workplace injury claim proving you only got the vaccine because your boss made you. Jansen and Spring don’t believe your boss could be held legally liable.