CVS Pharmacy Inc. (the Employer) plans to implement mandatory COVID-19 vaccinations for all employees according to the California Department of Public Health (CDPH) Order dated 8/5/2021. The situation is ever-evolving; however, the Employer’s current COVID-19 vaccination plan is as follows:
September 30th, 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 according to the 8/5/2021 CDPH Order (see here)
The Employer is in the process of determining how qualifying exemptions will be validated
October 1st, 2021: Mandatory COVID-19 testing commences for non-vaccinated employees according to the 8/5/2021 CDPH Order
TBD frequency of testing for all other employees (once weekly vs twice weekly)
December 1st, 2021: Employees who are not fully vaccinated or do not have a qualified exemption on file will be terminated from employment.
The Guild has engaged the Employer to bargain over the impacts of these mandates and has requested that the Employer update us with any changes to their proposed plans or timelines.
The Guild's stance on the Employer’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 CVS facilities in accordance with government regulatory agency rules and regulations.
FAQs 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).