California State Employees Must Show Proof of Vaccination

Officials for the State of California, hoping to head off new coronavirus cases, have issued a mandate that all State employees and healthcare officials must show proof of a COVID-19 vaccination. California joins New York City and the Department of Federal Affairs as the first to mandate vaccinations.

CNBC reports:

State employees will be required to submit documentation of their immunization by Aug. 2, according to a press release. Any state employees who aren’t vaccinated by then will be required to produce a negative Covid test at least once a week.

The new policy for health-care workers and congregate facilities takes effect Aug. 9, and health-care facilities will have to be in full compliance by Aug. 23, according to the release.

In state health-care facilities, employees who work in a hospital setting will be required to show proof of a Covid vaccine or produce negative coronavirus tests two times a week. Those who remain unvaccinated are recommended to wear N95 masks during work. Health-care workers in outpatient settings like dental offices will also be required to take a Covid test once a week.

The Cities of San Francisco and Pasadena are also requiring their employees to be inoculated, and the City of Los Angeles appears to be planning to follow suit.

How many workers will be affected?

There are approximately 246,000 employees of the State of California who will be affected by the new mandate, according to Live News 5. There are at least two million healthcare workers who will also be affected.

Governor Newsome also said that “vaccine verification also will be required in jails, homeless shelters and other places where people congregate.”

Can City and State employers mandate vaccinations?

Yes, they can. The concern with the COVID-19 vaccine is that it did not go through the usual process for approval by the Food & Drug Administration (FDA). Instead, the FDA granted Emergency Use Authorization (EUA) for the vaccines.

While certain agencies (state and federal) have rules regarding vaccines that were “authorized or approved” by the FDA – which may or may not include EUA – employees who refuse to be vaccinated and lose their jobs do not appear to be able to make a case for wrongful termination. Per Lindsay Wiley, a law professor who focuses on public health, “such issues ‘are being actively litigated right now, [but] so far, courts have not seemed to be particularly receptive to the arguments’ challenging other vaccine mandates’” the Los Angeles Times reports.

Where California protects itself is in the second part of its mandate: proof of weekly (or twice weekly, in the case of health care workers) negative tests. Because the State has created an option for its employees to either be vaccinated or provide weekly negative tests, state workers cannot say they are being forced to take a vaccination they do not want.

Can an employer ask for proof of vaccination or negative tests?

All employers, regardless of whether they are public or private, have the right to ask for negative COVID-19 tests as part of their work requirements. Contrary to popular belief, it is not a violation of HIPAA laws to require proof of vaccination or negative tests.

Briefly, the Health Insurance Portability and Accountability Act, or HIPAA, only applies to healthcare providers, health plans, and healthcare clearinghouses – not employers. As such, “It would not be a HIPAA violation for an employer to ask an employee’s healthcare provider for proof of vaccination. It would however be a HIPAA violation for the employee’s healthcare provider to disclose that information to the employer unless the individual had provided authorization to do so.” Employers also cannot ask you to divulge additional health information regarding your vaccine. For example, if you cannot be vaccinated, an employer cannot ask you why you cannot be vaccinated, or what underlying health conditions you have that could prevent vaccination.

McNicholas & McNicholas represents clients in employment law matters throughout California. To learn more about our services, please call 310-474-1582, or fill out our contact form.

Please note that this blog is not to be construed as legal advice. Because every case is fact-specific, you should consult directly with an attorney to obtain legal advice specific to your situation.