Can my boss make me get vaccinated? (Probably, unless …)

One of the hottest, and perhaps most controversial, topics in employment law right now is whether employers can require their employees to get the COVID-19 vaccine and terminate (or refuse to hire) them for failure to comply. These questions place two core values in tension: workplace health and safety on the one hand and the right to privacy (i.e. the right to be left alone) on the other. Before diving into this discussion, a little background is in order. California is an at-will employment state. That means you can get fired for any reason, no reason, or even a bad reason. It does not matter whether the reason is sound or fair. However, beginning in the 20th century, California and other states began to create exceptions to the rule of at-will employment. Perhaps the most well known exceptions are laws that prohibit discrimination on the basis of race, gender, religion, etc. To be able to state a claim for wrongful termination, you must be able to show that your termination was substantially motivated by a legally prohibited reason. Many employees instinctively assume that their employer cannot require them to get vaccinated. These employees also assume that their employer cannot ask them about their vaccination status. There is no law, however, that squarely addresses vaccination status. Three laws indirectly address this question and provide conflicting answers. Another law on the horizon will more firmly address the question.

Three Laws That Indirectly Address Vaccine Mandates

The first is California Labor Code section 6400, subpart a, which states “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” California Labor Code section 6401 states, “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” Finally, California Labor Code section 6402 states, “No employer shall require, or permit any employee to go or be in any employment or place of employment which is not safe and healthful.” These laws, which are part of the California Occupational Safety and Health Act, arguably require employers to mandate vaccinations in order to comply with their legally required mandate to furnish a place of employment that is safe and healthful. However, the employer’s obligation to provide a safe workplace runs into tension with the Americans with Disabilities Act (“ADA”) and California Fair Employment And Housing Act (“FEHA”), which prohibit unnecessary medical inquiries. The standard is whether the inquiry is “job related” and “consistent with business necessity.” This is a case-by-case question. In the view of the federal Equal Employment Opportunity Commission, employers can generally require employees who physically enter the workplace to be vaccinated. However, employers must make exceptions to this policy for employees who cannot get vaccinated due to disability or a sincerely-held religious belief. An exception to workplace policy on account of a disability or sincerely-held religious belief is called a reasonable accommodation. The employer must provide a reasonable accommodation to such employees unless the accommodation would pose an undue hardship. Examples of reasonable accommodations include permitting the employee to work from home (if it would allow the employee to perform the essential functions of the job) or permitting the employee to enter the workplace subject to regular testing, social distancing, improved ventilation, wearing a face mask, etc. For employees who work remotely and do not physically interact with co-workers or the public, a vaccinate mandate and inquiries about vaccination status may violate the ADA and FEHA, since they are not job related and not consistent with business necessity. Finally, the Constitutional Right to Privacy is also implicated. There is a line of published court cases in California which prohibit the employer from drug testing employees in some circumstances. But, as is common in the law, there are so many exceptions that the exceptions practically swallow the rule. (To put it differently, in most circumstances the employer generally can drug test its employees.) In circumstances where there is no legitimate reason for a vaccine mandate — such as where the employee works from home and never physically interacts with co-workers or the public — then it may violate the employee’s Right to Privacy under the California Constitution. A termination under such circumstances may violate public policy and give rise to a wrongful termination claim. I must heavily emphasize the word may because there are no published California cases on this subject yet. At this point, we can only make an educated guess as to how courts will decide this question.

One Law That Will Directly Address Vaccine Mandates

If you follow the news, you may be aware that President Biden has ordered the federal Occupational Health & Safety Administration to draft a rule that requires companies with more than 100 employees to institute mandatory vaccinations or testing protocols. This rule has not been released yet, so it is not clear what it will specifically require. However, it seems likely that it will contain exceptions to the vaccination mandate for the disabled and persons with sincerely-held religious beliefs. Stay tuned. (Disclaimer: This article is for informational purposes only and does not constitute legal advice. If you have questions based upon your specific circumstances, you should consult with a lawyer.)