Will Bay Area companies require the coronavirus vaccine for workers?

Dec 11, 2020

Companies will likely be able to require workers to be vaccinated against the coronavirus. And fire people who refuse.

As officials prepare to distribute the first precious vials of coronavirus vaccine, Bay Area businesses large and small are weighing whether to require or just encourage workers to get it, when their turn comes. The issue is plagued with uncertainty. Making the vaccine mandatory could create a workplace revolt. So, too, could requiring employees to return to offices among colleagues who have refused protection against the virus.

Legal experts said companies can choose to mandate their workers get a vaccine, but will need to accept that not everyone will take it.

Businesses can require employees to get a flu shot — something the University of California system did this year for everyone physically on campus. But they have to allow for exceptions, according to Domenique Camacho Moran, an attorney with the law firm Farrell Fritz.

“If someone says ‘It’s my sincerely held religious belief that I should not be vaccinated,’ then employers have to accommodate that,” Moran said. The same goes for a disability that would prevent someone from getting the shot.

One twist is that the vaccine is expected to be approved by the U.S. Food and Drug Administration under emergency use authorization, rather the standard process in which the FDA takes more time to review a drug. That makes it different, for example, from the flu vaccine, which has been around for decades.

“For an employer, they’re going to do an analysis of `Is this vaccine safe enough that I want to mandate everybody get it?’” Moran said.

Employers may also not want the controversy that could accompany enforcement of the policy, according to Kevin Troutman, an attorney with law firm Fisher Phillips.

“If a third of your workforce is upset, distracted, quitting their jobs, that’s not going to work very well,” Troutman said.

He said workers who don’t qualify for an exemption and refuse to get vaccinated could be fired. Employers should consider encouraging people to get vaccinated, and make it as easy as possible for them to do so, before inviting that conflict, he added.

The federal Equal Employment Opportunity Commission which handles enforcement of workplace laws said it is studying the issue.

“The commission continues to closely monitor the developments of a COVID-19 vaccine and is actively evaluating how a potential vaccine would interact with employers’ obligations under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the other laws the commission enforces,” spokeswoman Christine Nazer said in a statement.

Local employers have been mostly silent on the subject.

One exception is the University of California, which said this month it is not currently requiring employees to get a coronavirus vaccine but could change course. Even without a mandate, UCSF hopes to innoculate employees who have the most direct contact with COVID-19 patients.

Large technology companies, including Facebook and Google, have said most of their employees will be able to work from home until at least the summer of next year.

Facebook CEO Mark Zuckerberg told employees Thursday that he doesn’t think it will be necessary to require them to get the vaccine to return to the office, although he plans to get vaccinated, according to an email from spokeswoman Sona Iliffe-Moon. The company’s U.S. offices remain closed because of the pandemic and aren’t expected to reopen before a vaccine is widely available, Iliffe-Moon said.

The company plans to implement testing, social distancing, mask wearing and other precautions when it does reopen offices, she added.

Apple and Tesla — which has a 10,000-person manufacturing plant in Fremont — did not respond to emailed requests for comment about how they planned to approach vaccinations. Google responded but did not shed light on its plans.

The issue is on the minds of employees.

The majority of almost 600 employees surveyed across Apple, Google, Facebook, and Amazon said they would refuse to return to an office without a mandatory vaccinations scheme. The survey was run by Blind, an app that lets employees talk about their companies anonymously.

A large majority of employees from those companies, responding to separate questions, said they would get vaccinated if their employers asked them to.

The decision about the vaccine less pressing for those working at home. Not so for those with no choice but to show up to work each day.

Uber’s CEO sent a letter to governor’s of all 50 states asking that the ride hail and delivery drivers his company employs as contractors be prioritized for the vaccine, the New York Times reported.

Other companies are actively discussing whether to require or encourage vaccinations.

Foster City’s Exabeam has dealt with virus cases in the past. That doesn’t mean it is rushing to require every employee get the vaccine.

“Each organization will need to do what’s best for their employees and unique work environment,” CEO Nir Polak said in a statement. “Exabeam is evaluating all options, including employees being vaccinated for COVID-19, as part of our ‘return to the workplace’ plan.”

Mehdi Maghsoodnia, founder and CEO of a San Francisco company, 1health, that creates software to manage and track testing for the virus, said that he will ask his employees to get the vaccine when it becomes widely available, though those who can work remotely will be less of a priority.

The company works with partner organizations to administer both coronavirus and antibody rapid testing — it expects continuous uptake on the latter after the vaccine arrives — and Maghsoodnia said people in those positions will have to be vaccinated or already have antibodies.

Dr. John Swartzberg, an infectious disease specialist at the UC Berkeley School of Public Health, said hesitancy around the new medicine is understandable, but getting every person vaccinated, rather than just a few, will be critical in some settings to defeating the virus.

He pointed to nursing homes, which have been ravaged during the pandemic, as a setting where partial vaccination would create unacceptable risks.

“In a setting like that, you have to have everybody vaccinated,” he said.

Other precautions at worksites will continue to be a feature as a vaccine is rolled out.

The San Francisco company Safe Site Check In is working on ensuring employers can flag anyone who hasn’t been vaccinated when they come to a job site.

The company already provides QR codes employees can scan with a smartphone that let them to fill out a customizable questionnaire about COVID-19 exposure and symptoms.

It is working to add questions about vaccinations as well, according Tom Tortolani, the company’s head of product. He said it would be possible to upload a document showing proof of vaccination if companies required that.

Determining who is protected against the virus could create a legal problem, Troutman, the attorney, said.

Companies have expanded powers to ask questions and take employees’ temperatures because of the ongoing health crisis. Normally unless a medical inquiry is job related and tied to a business necessity, it could be prohibited under federal law.

Beyond questionnaires, many offices will be fundamentally restructured.

The nonprofit Workplace 2030 opened a prototype office in San Francisco this month that previews what offices might look like as a vaccine is rolled out and employees trickle back.

Touchless entry panels and temperature screenings like those in the space could become more commonplace. The mock-up includes clear barriers throughout and a “mud room” for screening along with technology that puts limits on occupancy, among other features.

About 70% to 80% of people worldwide will need to be vaccinated in order to create herd immunity, according to Dr. Maureen Miller, an infectious diseases expert who oversaw the planning and design of the space.

Protections like those offered in the prototype will be part of ensuring people are willing to go back to working in person, she said.

“If people don’t feel safe, they will not attend work,” Miller added.

Chase DiFeliciantonio is a San Francisco Chronicle staff writer. Email: chase.difeliciantonio@sfchronicle.com Twitter: @ChaseDiFelice

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