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Employers must document the vaccination status of employees under revised CAL/OSHA rules

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Posted at 7:28 PM, Jun 17, 2021

On top of dropping masks, a California safety board says employers are now required to document which employees are vaccinated.

In a 5-1 vote, the California Occupational Safety and Health Standards Board (OSHA) approved a clearer set of rules for vaccinated people in the workplace on Thursday.

Still, there is confusion on whether or not an employer can ask for an employee's vaccination status.

The short answer: yes.

“Not only will employers be allowed to ask for the vaccination status of their employees, but they will also be required to,” employment attorney Kathy Eppright said. "It's permissible for an employer if they wanted to ask that information of employees or customers in order to determine what rules to apply."

Eppright, who gave her perspective minutes before CAL/OSHA approved the revised rules, said asking for this info is not a violation of HIPAA laws in most cases.

“Restaurants, [law] offices like ours, we’re not covered by HIPAA which means you are not restricted by HIPAA from asking for medical information of this type,” Eppright added. "Right now, the agencies are making some sort of distinction between what a company can and can't do based on if someone is vaccinated or unvaccinated which is what justifies an employer asking for vaccination information.

Some of the revised rules by CAL/OSHA say:

  • Employers must verify and document the vaccination status of fully vaccinated workers if they do not wear masks indoors;
  • Employers must make COVID-19 testing available to unvaccinated employees who have symptoms, as well as vaccinated workers who have symptoms after close contact with a COVID-19 case;
  • Workers must be allowed to wear a face-covering if they choose without fear of retaliation from employers;
  • Employers must provide workers who are not fully vaccinated with respirators for voluntary use, upon request and at no cost;

Another local employment attorney, Allen Hutkin, said companies can even require employees to get vaccinated or fire them if they don't.

“[Employers] are not required to accommodate somebody who is not vaccinated. They can actually discipline them or terminate them, unvaccinated employees, unless they fall into a special category of somebody who has a disability that prevents them from being vaccinated or a religious affiliation that prevents them from being vaccinated,” Hutkin said.

The biggest question: How do employers get proof of vaccination from their employees? CAL/OSHA gives a few options, but no specifications.

“You can make a copy of the vaccination card, you can just look at it and just check it off that you saw it or you can have an employee fill out a form indicating their vaccination status,” Eppright said.

The one CAL/OSHA board member who voted against the revisions Thursday expressed concerns about the ambiguous terms.

“It is critical to ensure and verify who is vaccinated and who isn't,” Occupational Safety Representative Laura Stock said. “I believe it is essential to this approach to ensure that employees verify vaccine status through a reliable status."

Just because an employer is asking for this info doesn't mean they can do whatever they want with it.

“[Employers] need to be very, very careful with keeping that info confidential and keeping it from prying eyes and not divulging medical information about one employee to other employees,” Hutkin said.

Earlier this week, Governor Gavin Newsom said he would issue an executive order to immediately activate CAL/OSHA's revised rules instead of waiting for the normal 10-day approval.