COVID-19 vaccination mandate update & FAQs
Kaiser Permanente plans to implement mandatory COVID-19 vaccinations for all employees. The situation is ever evolving; however, the Employer’s current COVID-19 vaccination plan as of August 14, 2021 is as follows:
· August 23, 2021: All employees must provide proof of vaccination or decline the vaccination due to a qualifying exemption (religious belief or medical condition) by this date.
o The Employer is in the process of determining how qualifying exemptions will be validated
· August 24, 2021: Mandatory COVID-19 testing commences for non-vaccinated employees or employees who have not submitted proof of vaccination to the Employer.
§ Twice weekly if in the hospital or face-to-face with patients.
§ TBD frequency of testing for all other employees (once weekly vs twice weekly).
· September 30, 2021: All employees must be fully vaccinated or have a qualified exemption on file.
· October 1, 2021: Employees who are not fully vaccinated or have a qualified exemption on file will be placed on an unpaid Leave of Absence until the employee provides proof of being fully vaccinated. Failure to provide proof of full vaccination or qualified exemption during the 45-day period will result in termination from employment.
The Guild has engaged KP to bargain over the impacts of these mandates and have requested that the Employer update us with any changes to their proposed plans or timelines. The Employer has also informed the Guild that KP will follow county-specific mandates, if the county has stricter timelines, and that local leadership will let those affected employees know of deadlines and important dates that may vary. Thus far, KP has stated that San Francisco County is the only county with stricter timelines in some settings.
The Guild's stance on Kaiser’s mandated COVID-19 vaccination policy is to ensure the Employer is doing what they must to ensure health and safety of all Guild members in Kaiser facilities according to the contract provision stated in the Collective Bargaining Agreement between the Guild members and the Employer.
1600 ARTICLE XVI – SAFETY AND HEALTH
1601 In recognition of its obligation under existing Federal and State laws covering safety and health, the Employer shall make every reasonable and necessary provision for the safety and health of pharmacists during the hours of their employment.
The Guild’s attorneys have prepared the following FAQs to address the ongoing concerns of the ability of the Employer to mandate vaccinations for employees.
Q: Can an employer mandate that employees get vaccinated?
A: Yes, subject to collective bargaining. Federal law allows for mandatory vaccinations.
Q: If an employee declines to be vaccinated, can the employer require the employee be tested for COVID-19?
A: Yes, subject to collective bargaining. Federal law allows for COVID-19 testing in the workplace.
Q: What options are available if an employee experiences an adverse reaction(s) to the Covid vaccine?
A: An employee should look to file a worker’s compensation claim, seek any COVID leave available through their employer, and, if needed, look to use their sick leave banks.
Q: Do employees have medical privacy rights when an employer requires proof of vaccination?
A: Proof of vaccination provided by the employee is medical information that must be kept confidential by the employer under the Americans with Disabilities Act (ADA). Unless the employer is a “covered entity” (e.g., health plans, healthcare provider), the federal Health Insurance Portability and Accountability Act (HIPAA) does not apply.
Q: Don’t employees have a constitutional right to refuse COVID-19 vaccination?
A: No. The Supreme Court of the United States has upheld compulsory vaccination laws. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
Q: If an employer has a mandatory vaccination program, must it provide reasonable accommodations to employees on religious or disability grounds?
A: Yes, if the employee meets certain legal thresholds for establishing a religious belief or disability. Simply stating in a conclusory fashion that “my religious beliefs” or “my medical condition” gives me a pass from being vaccinated is insufficient under the law. Further, once that legal threshold is met, a public employer’s accommodation need only be “reasonable;” the employee is not entitled to his/her preferred accommodation. That means that a public employer could, for example, reassign an employee to a different position and/or require the employee to wear a mask. And a public employee who refuses those reasonable accommodations is subject to termination. E.g., Horvath v. City of Leander, 946 F.3d 787, 792 (5th Cir. 2020).
Q: The vaccines have only emergency use approval from the FDA. Aren’t there FDA statutes on emergency approval that forbid mandatory vaccination programs in the workplace?
A: No. A recent federal court decision indicates that the emergency use status of COVID-19 vaccinations under FDA statutes does not preclude mandatory vaccination programs at work. Bridges v. Houston Methodist Hospital, Case No. 21-CV-01774 (S.D. Tex. 2021).