On September 21, CAPE held a Member Info Session via Zoom to give the latest updates on the new Vaccination Policy as well as help answer any member questions. Our Member Info Session featured an expert panel including our CAPE President, Carlos Clayton, our General Counsel, Blaine Meek, and Will Aitchison, founder/director of Labor Relations Information System and one of the foremost legal experts in the county on vaccination negotiations.
CAPE, in coordination with the Coalition of County Unions (CCU), is currently involved in lengthy negotiations with the County over the Board of Supervisors’ COVID-19 vaccination mandate. Under California law, unions have the right to bargain over the “effects” of a mandatory vaccination program, though the employer has the management right to make the decision to have a mandate in the first place.
** UPDATE ON VACCINE POLICY NEGOTIATIONS - OCT 1, 2021: Negotiations Break Down with County on Impact of COVID Vaccination Mandate; Impasse Filed **
Below are a number of questions that were answered at the CAPE Member Info Session:
If I choose not to take get the vaccine, will I lose my job? Will the county be firing employees for non-compliance?
The Coalition of County Unions (CCU) has been negotiating this very question and have proposed alternatives to discipline. CAPE has not agreed to the Vaccine Policy being implemented and we continue to advocate for a policy that includes equitable, safety-conscious alternatives that would not separate experienced, valuable members of our County family from their positions.
The County’s Corrective Action Plan states that:
- “An employee who does not provide proof of full vaccination and has not submitted a request for exemption to their Departmental Human Resources Manager or designee will be issued a Notice of Vaccination Requirement by their department.”
- “The Notice of Vaccination Requirement will instruct an employee who is noncompliant with the full vaccination requirement to submit proof of receipt of all doses of a COVID-19 vaccine within forty-five (45) calendar days from the date the Notice was sent to the employee.”
- “If an employee fails to comply with the requirements outlined in the Notice of Vaccination Requirement or the timeline set in the decision denying the exemption request or the decision denying the request for reconsideration, the employee will receive a five (5) day suspension. This five (5) day suspension will also notify the employee of potential future disciplinary action should the employee remain in noncompliance after the five (5) day suspension is served.”
Has the County announced a 45-day extension to comply with their Vaccine Policy?
When reviewing the County’s Corrective Action Plan, we DO NOT interpret the 45-days to comply with the Notice of Vaccination Requirement as an extension and would not recommend our members view it as such either.
Should members wait until CAPE has resolved all questions/negotiations before supplying vaccination information to the County?
California Public Sector Labor Law provides that the employer may legally proceed to implement programs addressing an emergency while still in negotiations with its unions regarding such programs. Additionally, the current law supports the employer asking its employees for evidence of vaccination – such evidence is not considered a medical record protected by HIPPA. If a member is ordered to register with the County's third-party contractor, Fulgent Genetics, the member should comply with the instruction direction in order to avoid being considered insubordinate. If a member has an objection to the instruction, direction or order, they may file a grievance thereon.
How do we request a medical or religious exemption?
The County has posted all exemption application forms here. The CCU has proposed enhanced and clarified medical exemptions, including possibilities currently under study that the CDC may approve in the future. Should you have any questions or concerns with regard to the information being sent, please contact the Los Angeles County Employee Hotline at (833) 990-2352 or [email protected].
What protections are there for those who don't want to disclose medical history-privacy protections?
Though the Americans with Disabilities Act (ADA) prohibits employers from demanding medical information unless they have reasons that are considered “job related and consistent with business necessity,” the Equal Employment Opportunity Commission (EEOC) has determined that requests for vaccination status is permissible under the ADA.
What will the County do to protect the vaccinated employees from increasing numbers of breakthrough infections?
Though we continue to advocate for a long-term Telework program, CAPE has worked to ensure that the County follow the guidelines set by the Department of Public Health while moving forward with their plan to re-open.
We encourage everyone to read the Department of Public Health’s "Protocol for Reopening County Offices”
Be sure to examine:
- “Workplace Safety Protocols” on page 2 (including details for employees who are vulnerable employees)
- “Special Considerations for Employees that Require Entry into Residential, Commercial or Public Building” on Page 6.
- “Special Considerations for Employees that Operate out of Vehicles” on Page 7.
Will the County be held liable for any adverse events that may occur as a result of these vaccines?
In negotiations with the Coalition of County Unions, the County has discussed that any employee’s adverse reaction to the vaccine would be covered by the State's Workers Compensation, but we are not aware of a legal decision on this question to date.
Will employees still be tested even with the vaccination?
Those who are requesting an exemption, in the process of being approved for an exemption or would otherwise not be vaccinated, will go through regular COVID-testing. In this scenario, those who are vaccinated would not go through testing.
Why is the County using Fulgent Genetics? Does Fulgent Genetics share personal/testing information/results with other parties?
A third-party contractor, Fulgent Genetics, will be used to both collect the data on employee vaccination evidence and perform the COVID testing of County employees. The County does not have the trained staff and operations organized to perform this work. However, the County represented that the third-party contractor will not retain or use this information, it will be organized and sent solely to the County.
