What California Employers Need to Know About Vaccine Mandates

Texas is Banning Mandatory Vaccines While the Federal Government Ramps Up Requirements. So, What Should California Employers Be Doing?

With the patchwork of local, state, and federal vaccine requirements in a constant state of flux, compliance can seem complicated. In this Weekly Brief, we will answer some FAQs we’re hearing from California employers about vaccination mandates and COVID-19:

Does the Texas Ban on Mandatory Vaccines Impact California Employers?

The Texas ban only impacts California employers where the business has an office or workers in the Lone Star State. If that is the case for your business, the law surrounding mandatory employee vaccination is currently murky.

The Executive Order signed by the Governor in October states that:

“No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”

While this Order is portrayed as ‘banning’ vaccine mandates, that’s not actually the effect. Instead, this Order expands the range of required exemptions to any vaccine mandate.

There are a number of legal issues stemming from this order that are yet to be resolved:

• It is unclear whether the Order should be read as:

By any reason of:

(i) personal conscience;

(ii) religious belief; or

(iii) medical reasons.

OR

By any reason of:

(i) personal conscience, based on a religious belief; or

(ii) for medical reasons.

• The Order is silent on the ‘undue hardship exception’ provided for by federal law, which allows an employer to deny an accommodation based on religious or medical reasons in certain circumstances.

With the lack of clarity provided in the Order (and the lack of provision for enforcement), some employers have stated that they will continue to require Texas-based employees to receive the vaccine to maintain their employment. If you’re in this position, we recommend you consult with counsel before implementing a vaccine policy.

What Vaccine Laws Do California Employers Need To Know About?

California employers are expected to follow the requirements put in place by county governments (like that in place in Los Angeles), Cal-OSHA, and the federal government.

Local

You should check your county government website for details of any county vaccine mandates.

State

CAL-OSHA updated its Emergency Temporary Standards (ETS) on June 17, 2021. You can read our coverage of the ETS here.

Notably, the current ETS outlines that:

“If federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, the State will have 30 days after the date of promulgation of the federal standard to adopt a comparable standard”.

California employers should expect a comparable mandate to follow by around the end of November.

Federal

The Biden Administration released details of their vaccine mandate on November 4. The laws were immediately challenged in a number of states and a temporary stay has been placed on the mandate.

We’ll publish a more comprehensive piece on the mandate in the future if it survives the court proceedings.

Resources for California Employers

Here are some resources that may be useful for California Employers:

​CGL Blog Post: COVID-Vaccines in the Workplace: Issues, FAQs, and Answers (from February 2021, so it contains references to laws which have been superseded, but it does provide an outline of whether employers ‘should’ mandate a vaccine)

​CGL eBook: The Post-Pandemic Handbook for Employers​

​CGL Blog Post: COVID-19 Leave Entitlements for California Employees

If you need further assistance navigating workplace vaccine mandates during the pandemic, ​reach out. We’re here to help!

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