Since the Food and Drug Administration (FDA) approved use of three COVID-19 vaccines under emergency use authorizations in April 2021, many public and private employers have announced and/or implemented mandatory vaccination policies. In addition, on September 9, 2021, President Biden signed an executive order requiring that certain federal contractors mandate vaccinations for their workers and directed OSHA to implement a rule that would require employers with 100 or more employees to mandate vaccination and/or COVID-19 testing. For more information, see our previous blog post.

Employers implementing mandatory vaccination policies (either by the company’s decision or pursuant to government requirements) have been left with questions on how to properly address employee requests for accommodations to such policies due to religious beliefs, practices, and observances.

On September 17, 2021, the County of Los Angeles Department of Public Health issued a new Public Health Order, effective at midnight on October 7, 2021, and continuing until further notice.

The Health Order emphasizes that “[t]he best way to reduce the current level of community transmission and to prevent future surges is for everyone who is eligible, including those who have recovered from a COVID-19 infection, to get fully vaccinated as soon as possible.” To promote its goal and reduce community transmission of the virus, the Health Order requires:

On September 14, 2021, Contra Costa County issued Health Order No. HO-COVID19-57 (the “Order”) mandating certain Contra Costa County businesses and operations to verify its patrons and employees are either fully vaccinated or have a recent negative COVID-19 test result in response to the surging number of COVID-19 delta variant cases.  The Order takes effect at 8:00 a.m. on September 22, 2021.

Today, President Biden announced the nation’s COVID-19 Action Plan, which is a six-prong, comprehensive national strategy designed to save lives, keep schools open and safe, and protect the nation’s economy while avoiding additional lockdowns and damage. The six prongs are:

  • Vaccinating the unvaccinated;
  • Further protecting the vaccinated;
  • Keeping schools safely open;
  • Increasing testing & requiring masking;
  • Protecting the nation’s economic recovery; and
  • Improving care for those with COVID-19.

On August 25, 2021, Cal/OSHA issued a press release which encouraged employers and workers to follow the recent update from the California Department of Public Health (CDPH) recommending that all individuals wear face coverings while indoors regardless of vaccination status (August 25 Recommendation). The full text of the Cal/OSHA press release is linked here and

Seven Bay Area counties and the City of Berkeley issued Health Orders mandating mask use for indoor public spaces such as places of work. The Orders apply to both vaccinated and non-vaccinated individuals. However, the Orders provide exceptions for individuals working alone in a closed office space, individuals that are eating or drinking, and individuals specifically exempted by the California Department of Public Health guidance such as individuals with medical conditions that prevent them from wearing a mask. The indoor mask mandates are effective August 3, 2021 and will continue to be in effect until rescinded. If your company has business in any of these locations, please review each applicable order for detailed information.

Note that in the workplace, workers must also follow Cal/OSHA mask requirements. Please consult with legal counsel for questions related to the Health Orders or Cal/OSHA.

The links to the relevant Health Orders are included below:

Post-Acute COVID-19 Syndrome, colloquially referred to as long COVID-19, occurs when an individual who had COVID-19 continues to experience ongoing symptoms for months afterward. Individuals with long COVID-19 might have difficulty working in the same way they did before and may be entitled to workplace accommodations so they can do their job. Even if these employees do not think of themselves as having a disability, they may meet the Americans with Disabilities Act definition.

Under the ADA, an employee is entitled to accommodations if they meet the definition of an individual with a disability and are qualified for the job with the reasonable accommodation. An individual with a disability is a person who has a physical or mental impairment that substantially limits major life activities, has a record of such an impairment, or is regarded as having such an impairment. Whether a particular condition is a disability as defined by the ADA requires a case-by-case determination. However, employers are free to provide accommodations even if someone doesn’t meet the definition of disability – and they must provide accommodations if they do meet it, absent undue hardship.