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  • By: Moss Bollinger
  • Published: September 15, 2021
Artistic representation of viruses in shades of blue and turquoise against a clear blue background- Moss Bollinger LLP

The COVID-19 delta variant continues to surge despite vaccination rates rising in more places throughout the country. Here are answers to some frequently asked questions about California employment law relating to COVID-19 testing and vaccination.

Is an employer required to compensate an employee for the time spent obtaining a COVID-19 test or vaccination?

If an employer requires employees to obtain a COVID-19 test or vaccination then the employer must pay for the time it takes for the testing or vaccination, including travel time. Why? Because this time would equate to “hours worked” as defined as the time during which a worker is subject to the control of an employer.

May an employer require employees to submit to a medical test to detect the presence of the COVID-19 virus or antibodies before permitting employees to enter the workplace?

Under the FEHA, an employer may mandate a medical examination when it is job-related and consistent with business necessity. However, an employer may only require an employee to submit to viral testing. An employer may not use antibody testing to base a decision on whether an employee may return to the workplace.

May an employer ask all employees entering the workplace if they have COVID-19 symptoms?

Yes, but the employer must keep any information private that it obtains using this procedure. It must keep the employee’s medical file separate from the employee’s personal file.

May an employer take all employees’ temperature before allowing them to enter the workplace?

Measuring an employee’s body temperature is typically a procedure that may only be used in certain circumstances. However, an employer may take an employee’s body temperature for the limited purpose of evaluating the risk that the employee’s presence in the workplace presents to others because of COVID-19 infection.

Is an employer required to compensate employees for the cost of a COVID-19 test or the cost, if any, of getting a COVID-19 vaccination?

Yes, if an employer specifically requires employees to obtain a COVID-19 test or a vaccination. The employer must also compensate an employee if an employee obtains the test or vaccination as a direct consequence of the employee’s performance of the employee’s duties because the test or vaccination is effectively required for a job, the employer must pay for the costs of the test or vaccination. In this case, this compensation is considered a reimbursement for necessary business expenses.

Are there any anti-retaliation protections for vaccinations?

Yes. An anti-retaliation provision under California law protects employees seeking reasonable accommodations for a disability, in this case, infection of the coronavirus.

May an employer ask an employee why they have been absent from work if the employer believes it is a medical reason?

Yes. An employer is permitted to ask employees why they have been absent from work. If the employee discloses a medical reason the employer must keep this information confidential.

California employees are legally entitled to compensation if their employers violate the state’s employment and labor laws, including those related to the COVID-19 pandemic. The experienced employment law attorneys at Moss Bollinger can help protect and assert your important legal rights as a California worker. We can help you determine your best course of action moving forward. Moss Bollinger is dedicated to protecting and asserting the rights of California employees. Contact us online for a free consultation.

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