Awaiting Federal Guidance on Vaccine Mandate, California Employers Must Look to Cal/OSHA for the Final Word

According to various reports, federal OSHA will release proposed regulations regarding the vaccine mandate for employers with 100 or more employees in the near future.  While such guidance has been eagerly anticipated in the employment community for weeks, California employers will have to wait for further guidance from Cal/OSHA, which has jurisdiction over most California workplaces.  Cal/OSHA recently revised its FAQs as follows: 

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.

What should you be doing?

If you have more than 100 employees, we recommend that you use this time to survey the vaccination status of your employees so you will be able to make informed decisions regarding mandating vaccines or accommodating unvaccinated workers.  And, as always, make sure you have a written COVID-19 Prevention Plan and you continue training your employees and enforcing the requirements in your workplace.  In accordance with your plan, review your business operations, including time keeping and pay procedures, and establish a plan for pay issues that will arise.

We will update as developments occur.  If you have questions regarding the application of the mandate, federal OSHA, or Cal/OSHA you may contact one of the authors or your usual employment law counsel at AALRR.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

©2021 Atkinson, Andelson, Loya, Ruud & Romo 

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