A wise listener this week asked whether her employer could require COVID-19 vaccinations for new employees, but not current ones. Such a great question!  The short answer is “probably,” but it’s a bad idea.  Why?

First, a little background…

The DFEH and the EEOC have stated that asking current employees whether they are vaccinated is not a disability-related inquiry. However, an employer should not ask prospective employees about their vaccination status until after making them an offer of employment. For that reason, it s a good practice to make vaccination requirements known to all prospective applicants, including in job postings.

Now, what about the listener’s question? Can an employer legally mandate vaccinations for new hires, but not for current employees? Technically, yes. That’s because vaccination status is not considered a protected characteristic under state or federal law.  Similarly, employers may require new hires to wear a mask, social distance, work remotely if possible, and undergo regular COVID-19 testing (absent a valid religious or disability-related conflict with the applicable requirement).

However, employers also should consider the potential negative effect on employee morale of applying a mandatory vaccination requirement to new hires, but not current employees. Also, if the rationale for a mandatory vaccination policy is safety, that rationale is undercut by not holding current employees to the same rule.

In California, of course, employers must pay for mandatory vaccinations (and the time non-exempt employees spend obtaining vaccinations), and any employees who have a negative reaction to the vaccine likely are eligible to pursue workers’ compensation claims.

More to come once Cal-OSHA issues its response to OSHA’s new Emergency Temporary Standard published on November 5, 2021.