By Thu Do

Law360 (January 29, 2021, 6:21 PM EST) --

Thu Do

While it has been over a month since the first Californian was vaccinated — on Dec. 14, 2020 — for COVID-19, the Golden State, like much of the rest of the nation, is nowhere close to resuming a normal life.

With many California employers hoping to bring their employees back to the office or others simply wanting to be able to open their doors for business again, the emergency approvals of vaccines for COVID-19 provide a glimmer of hope. In fact, it's the hope that the general population is now looking for.

Vaccines to prevent COVID-19 are the best hope for ending the pandemic — and as the U.S. Food and Drug Administration begins authorizing emergency use of COVID-19 vaccines, many California employers and businesses have questions on what a workplace mandate will look like and whether it exposes them to additional liability

The two vaccines authorized for emergency use are from Moderna Inc. and Pfizer Inc. with two additional vaccines from Astra Zeneca PLC and Johnson & Johnson in late-stage clinical trial phases, all of which provide that glimmer of hope for a new kind of normal.

In the month-plus that the vaccine has been available to specific groups of people, scientists are better able to understand and document the potential side effects of the vaccine.

The potential side effects or long-term effects from becoming vaccinated are important for employers or businesses that are thinking about whether they want to implement a vaccine mandate or have the right to mandate their employees to become vaccinated.

While the rollout of the vaccine here in California has been slower than anticipated, thus potentially delaying the opening of businesses, the California Department of Public Health recently announced that they are revamping their system, which aims to simplify eligibility, standardize information and data, and address the available supply of doses by streamlining the process.

As the state works on improving the rollout and distribution of the vaccine, this provides employers time to educate themselves about the potential liabilities that come with a vaccine mandate.

Currently, there is no specific uniform mandate about wearing a mask in public and we do not envision a government mandate to be vaccinated.

Notably, neither the U.S. Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing have addressed a vaccine mandate, though the issue is addressed by the EEOC, with no specifics on whether a mandate is allowed.

Therefore, it will be up to the employer or business to address whether or not to mandate the vaccine, especially as it becomes available to the general population.

In general, employers should remember that guidance from public health authorities is likely to change as COVID-19 evolves.

Thus, to minimize liability, employers should stay apprised of the most current information on maintaining workplace safety from the Centers for Disease Control and Prevention[1] as well as the California Department of Public Health.

As it relates to the state, the California Department of Public Health[2] has established the COVID-19 California governor's vaccine task force and a COVID-19 vaccine task force working group.

California has always been on the forefront of setting the precedent for change and the protection of employees. This was clearly seen by the various emergency legislations signed by our governor.

That said, California is drawing upon the knowledge of many to ensure the following:

• That COVID-19 vaccines meet safety requirements: California formed a scientific safety review work group[3] comprised of nationally recognized immunization, public health, academic and other subject matter experts. The work group is staying abreast of vaccine candidate(s) trials, evidence of safety and efficacy, and other information to independently provide recommendations[4] to California leadership and vaccine planning efforts as well as ensure public confidence in vaccine safety, efficacy, and implementation efforts, too.

• Two work groups are striving to ensure the vaccines are distributed and administered equitably: a drafting guidelines work group[5] is developing California-specific guidance for the prioritization and allocation of the vaccine when supplies are limited, and the Community Advisory Vaccine Committee is providing input and feedback to the planning efforts and resolving barriers to equitable vaccine implementation and decision making.

Pursuant to the California Department of Public Health, California's plan for the distribution and administration of a COVID-19 vaccine is guided by the following overarching principles:

• Ensuring the COVID-19 vaccine meets safety requirements;

• Ensuring the vaccine is distributed and administered equitably, at first to those with the highest risk of becoming infected and spreading COVID-19; and

• Ensuring transparency by bringing in community stakeholders from the outset.

Even with the guidelines and protocols that California has put into place to ensure the safety of the vaccine, there is no clear indication of what an employer could face if their employee has an adverse reaction following a vaccination, especially if the employer mandates it.

Will this open the door to more workers' compensation claims, potential petitions under Labor Code Section 132a, or serious and willful petitions for the mandates or failure to mandate?

Or will the mandates reduce the number of work-related COVID-19 claims?

These are questions any California employers are asking and there are two simple answers: it depends and time will tell.

Requiring an employee to be vaccinated as a condition of continued employment or before returning to the worksite is for the benefit of the employer, but also promotes workplace safety.

However, a requirement by the employer opens the door to uncertain liability as it is unclear who and how many people within the general population could have an adverse reaction or injury to the vaccine.

This also leads to the question of whether the adverse reaction or injury following the vaccine can be considered first aid — not requiring the employer to provide a claim form and open a workers' compensation claim — or whether the adverse reaction/injury results in long-term issues that require time off or medical treatment, which could then turn into a compensable workers' compensation claim and the initiation of benefits.

Whether a vaccine mandate and any injury that results from the vaccine would be considered work-related will be very much fact-driven and determined on a case-by-case basis.

In California workers' compensation cases, the courts look to Labor Code 3600 to determine whether conditions of compensability exist to determine whether an injury will be determined work-related.[6]

For example, requiring the vaccine as a condition of continued employment or as a basis for physically returning to the worksite are for the benefit of the employer.

This benefit could result in an adverse reaction or injury following the vaccination deemed to be work-related. The main question to ask is whether the vaccine is a "condition of employment" to benefit of the employer.

Currently, two California cases address employer liability and vaccinations.

In 1949's Roberts v. U.S.O. Camp Shows Inc.,[7] the employee was directed by his employer to receive various inoculations, and as a result, contracted encephalitis. The California Second District Court of Appeal held that "incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer."

Likewise, in Maher v. WCAB,[8] a nurse applied to work at a hospital. A mandatory test for tuberculosis resulted in treatment that injured her. Therefore, the California Supreme Court in 1983 explained that "the rule is well settled that where an employee submits to an inoculation or a vaccination at the direction of the employer and for the employer's benefit, any injury resulting from an adverse reaction is compensable under the Workers' Compensation Act."

The clear takeaway from both these cases is the emphasis on: "at the direction of the employer" and "for the employer's benefit." These two things will likely be the two elements that the courts look to in addressing whether a mandated COVID-19 vaccine injury will be considered work-related as there is no precedent.

Based on the current case law and the lack of official guidance from the EEOC or the California Department of Fair Employment and Housing, we do not recommend employer vaccine mandates.

In the alternative, to ensure and promote workplace safety, employers should encourage employees to become vaccinated by educating and providing resources so that they can stay apprised and make their own informed decision on whether to become vaccinated.

The vaccination should not be a condition of employment, otherwise, any resulting injury could become work-related.

California A.B. 685 [9], effective through Jan. 1, 2023, already requires employers to adhere to stricter occupational health and safety rules while providing the California Division of Occupational Safety and Health, or Cal/OSHA, with expanded enforcement powers to address such standards.

Following the implementation of the mandate as of Jan. 1, 2021, employers were recommended to implement the following to ensure the safety of their employees:

• Safe and effective measures to prevent and minimize the risk regarding the spread of COVID-19 at the worksite;

• Implemental disinfectant procedures upon notification of a COVID-19 exposure at the worksite;

• Notification to employees of COVID-19 exposure;

• Notification to employees of COVID-19 benefits; and 

• Most importantly, sufficient documents or record-keeping development to track the number of employees and individuals at the worksite on a daily basis to ensure accurate and proper compliance with the notice requirements of A.B. 685.

The implementation of these protocols helped employers avoid any Occupational Safety and Health Administration violations and any potential serious and willful petitions from their employers who may contract COVID-19 at the worksite.

Now with the availably of vaccines, employers should also stay apprised of the CDC and California Public Health recommendations to ensure a safe workplace and whether ensuring a safe workplace includes education and recommendations on the COVID-19 vaccinations.

This will ensure and reduce any industrial liability for COVID-19 exposures. Ultimately, based on the current case law and the lack of official guidance from the EEOC or the California Department of Fair Employment and Housing, we do not recommend employer vaccine mandates.

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Thu Do is a partner at Gilson Daub LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] https://www.cdc.gov/coronavirus/2019-ncov/community/workplaces-businesses/index.html.

[2] https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19Vaccine.aspx.

[3] https://www.gov.ca.gov/2020/10/19/governor-newsom-names-scientific-safety-review-workgroup-to-advise-state-on-covid-19-vaccines/.

[4] https://www.gov.ca.gov/2020/12/13/western-states-scientific-safety-review-workgroup-confirms-the-pfizer-vaccine-is-safe-and-efficacious-for-public-use/.

[5] https://www.cdph.ca.gov/Programs/OPA/Pages/NR20-281.aspx.

[6] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3600.&lawCode=LAB.

[7] https://caselaw.findlaw.com/ca-court-of-appeal/1797576.html.

[8] https://law.justia.com/cases/california/supreme-court/3d/33/729.html.

[9] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB685.

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