To date, the California Department of Fair Employment and Housing (DFEH) has not issued relevant guidance regarding mandatory COVID-19 vaccination programs. Despite the current lack of California-specific information, on December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19-related guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address questions about requiring employees to be vaccinated.

Although the EEOC historically has taken the position that employers should consider encouraging, rather than mandating, vaccines (e.g., the annual flu shot), this updated guidance clarifies that employers are lawfully permitted to require employees to be vaccinated before returning to the office, subject to certain limitations and exceptions.

Without California-specific guidance, employer vaccine mandates could pose liability concerns. Such uncertain liability includes potential workers’ compensation claims (and possibly civil claims) for a mandated COVID-19 vaccine injury or adverse reaction.

The California’s Workers’ Compensation Act (WCA), Cal. Lab. Code 3600, et seq., addresses “conditions of compensability” if an injury is “work-related.” It is an open question, since there is no precedent, what courts and the WCAB will consider in deciding whether a mandated COVID-19 vaccine injury is work-related; however, older California cases addressing employer liability related to vaccinations focus on whether the vaccination was “at the direction of the employer” and “for the employer’s benefit.” (See, e.g., Roberts v. U.S.O. Camp Shows, 91 Cal. App. 2d 884 (1949) and Maher v. Workers’ Comp. Appeals Bd., 33 Cal. 3d 729 (1983)). Further, enterprising plaintiffs’ lawyers will no doubt seek to “slip the bonds” of the WCA in order to avoid the liability limits that are a feature of that statutory scheme. In short, given the lack of official guidance from the DFEH, potential liability for California employers remains unclear.

Further information may be found in our colleagues’ post on Proskauer’s Law and the Workplace blog and podcast that summarized the EEOC’s guidance as well as other considerations.