With a growing number of employers becoming more comfortable with COVID-19 vaccine mandates, combined with this week’s FDA full approval of the Pfizer vaccine, the California Legislature is now discussing a potential bill that would impose a vaccine mandate or regular testing requirement on all private-sector employers.  Although nothing has been drafted yet, the legislature is debating whether a mandate should be implemented.

The bill, if presented, is likely to mirror Governor Newsom’s July 26, 2021 executive order and the recent California Department of Public Health (CDPH) orders requiring all state workers, workers in the health care industry and high-risk congregate settings, and educational workers to either show proof of full vaccination or be tested on a regular basis.

However, there are several important and practical issues that should be considered in any mandatory vaccination bill, including, but not limited to:

1. Who will cover the testing costs and whether time traveling to and from the testing site, as well as time spent obtaining a COVID-19 test, will count towards compensable hours worked;
2. Whether additional paid sick leave should be provided for those that may experience symptoms from the vaccine, as the COVID-19 Supplemental Paid Sick Leave will end on September 30, 2021;
3. Whether large employers should have different obligations as opposed to smaller employers; and
4. Whether an employee, who refused to comply and is terminated from employment, chooses to resign, or is placed on unpaid leave, will still be eligible for unemployment benefits.

Most California bills require a majority vote (it must pass by 21 votes in the Senate and 41 votes in the Assembly) and take effect on Jan. 1 of the following year, while urgency measures and appropriation bills require a two-thirds vote (27 in the Senate, 54 in the Assembly), and take effect immediately if the Governor signs the bill.  Therefore, if presented to the Legislature, the bill would need a two-thirds vote to pass as an urgency bill if it was to be effective in 2021.  That will not be easy, given that the current legislative session ends on September 10, 2021 and no bill has even been formally presented.  As a result, and because opinions differ as to the advisability of the measure coupled with (a) the logistical/practical considerations that need to be accounted for, and (b) the ongoing recall election, we believe it is unlikely that any comprehensive private sector vaccine mandate bill would pass during the current legislative session.  We also believe that if there are any further state employer mandates related to vaccination, they are likely to be industry-specific.

Please contact your local state senator or assembly representative for more information about this potential bill or to voice your opinion about it.