As more California residents get vaccinated against COVID-19, questions continue about which mandates cover how employers can determine whether employees are vaccinated or not.
“The Title VII and the EEOC guidance addresses the question about the extent to which you can inquire with workers about their vaccinated status,” William B. Gould IV, the Charles A. Beardsley professor of law, emeritus, at Stanford University, told the Northern California Record.
Some areas, like Santa Clara County, had introduced mandatory vaccine tracking for workplaces, but in the absence of such mandates, the federal directives provide the framework.
California has been rigorous with standards to combat COVID-19, including a new mask mandate in Los Angeles County, and mask recommendations in seven Bay Area counties in response to the current increase in coronavirus cases. California state officials continue to urge vaccinations as the best protection against the virus.
Implementing federal non-discrimination policy is key in determining who is vaccinated.
“The question is do they run a risk of a violation of the statute, and the guidance says that there are limits on the inquiries that can be made with regard to vaccination status and accommodation must be provided,” Gould said. “The accommodation is presumed to be applicable to vaccination itself.”
The Cal/OSHA ETS also provide direction on vaccine record keeping.
“They’re obliged to, in all probability, keep them in a separate file so that any kind of ability to examine personnel records would not run the risk of a privacy disclosure,” Gould said.
Gould also noted the new ETS do not allow employers to penalize employees based on their vaccinated status.
California also now mandates specific notification methods for workplaces.
“We had a law passed at the beginning of the New Year which provides that the employer is obliged to tell workers if there’s an outbreak, if there’s a danger, so I think at least these developments in California law have expanded employee rights,” Gould said.