Cal/OSHA Updated COVID-19 Guidance for Employers

1. Q: When is an employee considered vaccinated under the ETS?
   A: An employee is considered fully vaccinated if the employer has documented that the employee received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine.
2. Q: What COVID-19 vaccines are acceptable under the ETS?
   A: Vaccines must be FDA approved; have an emergency use authorization from the FDA; or, for persons fully vaccinated outside the United States, be listed for emergency use by the World Health Organization (WHO).
3. Q: Must the ETS still be followed for vaccinated persons?
   A: Yes, some of the requirements of the ETS must still be followed by vaccinated employees, as discussed in the Face Covering, Testing, and Outbreak sections of this FAQ.
4. Q: May an employer require employees to submit proof of their being “fully vaccinated”?
   A: Yes. As explained by the Department of Fair Employment and Housing, https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.
   Under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated.
5. Q: May an employer require employees to be vaccinated against COVID-19?
   A: This is an issue outside the scope of the ETS. For guidance, employers may wish to refer to information provided by the federal Equal Employment Opportunity Commission (EEOC) and/or the California Department of Fair Employment and Housing at the following webpages. Both of these “FAQ” resources address this question.
   EEOC FAQ’s regarding COVID-19: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws
   DFEH FAQs regarding COVID-19: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf
6. Q: What is the employer required to do if it does not want to ask employees whether they are vaccinated?
   A: If the employer does not wish to ask about and document the vaccination status of their employees, the employer must treat all employees as unvaccinated.
7. Q: After asking about an employees’ vaccination status, how can an employer document that an employee is “fully vaccinated”?
   A: An employer is not compelled to use any specific method of documenting their employees’ vaccination status, though whichever method is used, the information must be kept confidential. Acceptable options include:
   • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
   • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
   • Employees self-attest to vaccination status and employer maintains a record of who self-attests.
   Nothing in the ETS prevents an employer from treating all employees as unvaccinated and taking the most protective steps under the ETS (such as requiring all employees to wear a face covering) instead of having a documentation process.
8. Q: How long are employers required to maintain documentation of employee vaccination status?
   A: Vaccination records created by the employer under the ETS need to be maintained for the length of time necessary to establish compliance with the regulation, including during any Cal/OSHA investigation or appeal of a citation.
   In order to encourage documentation using vaccination records, Cal/OSHA has determined that it would not effectuate the purposes of the Labor Code to subject such records to the thirty (30) year record retention requirements that apply to some medical records.
9. Q: If federal OSHA adopts a standard obligating employers with 100 or more employees to require COVID-19 vaccines or weekly testing, what will happen in California?
   A: California maintains an occupational safety and health plan that is approved and monitored by federal OSHA. As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s, in accordance with Section 18 of the federal Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).

   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.

Source: California Department of Industrial Relations