In September 2022, California DPH announced it would cease requiring all K-12 school staff to either be vaccinated or tested weekly. This is subject to change.
Individual districts can choose to require vaccination for their staff and/or require frequent testing. Districts must bargain the effects of the state’s withdrawal of its mandate if CSEA demands it.
There is no law requiring California DPH to take action to protect school employees. While private employers such as CSEA can be held liable if staff or members contract COVID at work or events, the state cannot be held liable for inaction if school employees catch COVID.
Community colleges have not been covered by any state vaccine mandates. Each college currently can decide its own policy about vaccination and/or testing requirements for staff, so long as it bargains the effects of any change.
Yes, those who work in healthcare, those who work in Head Start, and those who work on federal contracts. Head Start announced in July 2022 that all Head Start staff would need to be vaccinated before the start of the fall semester and would be paid a $3000 bonus for having done so. The healthcare workers mandate was upheld by the U.S. Supreme Court, but the Court also invalidated a broader OSHA mandate going beyond healthcare and Head Start.
In 2021, President Biden adopted an executive order requiring federal contractors to require vaccination of their employees. A court issued a national injunction against this mandate, but this injunction was lifted by the 11th Circuit Court of Appeal in August 2022 for contractors operating outside that court’s jurisdiction (which is only Florida, Alabama and Georgia). However, by a 2-1 vote, the panel of judges expressed the view that this mandate is unconstitutional as exceeding the President’s power over purchasing decisions. This view is controversial among legal scholars, however, and CSEA counsel believes this is an extreme position which may not be followed by the U.S. Supreme Court. Some community colleges and K-12 districts believe that portions of their operations are covered by this mandate.
It is not. Because school employers are legally allowed to require vaccination (absent disability or religious exemption), for the same reasons it is legal for them to ask as well. The Health Insurance Portability and Accountability Act (HIPAA) does not apply to the conduct of an employer or union, but rather regulates only health care plans and providers. The Equal Employment Opportunity Commission (EEOC) has held that such an inquiry does not violate anti-disability laws: see the EEOC FAQ #K3.
A major worry with the coronavirus is that people can be infected and can spread the virus to others without exhibiting symptoms themselves. Testing leads to quick identification of cases, quick treatment for those people, and immediate isolation to prevent spread. Early testing also helps to identify anyone who came into contact with infected people so they too can be quickly treated.
Yes, if your employer provided reasonable advance notice to CSEA of its intent to require testing and provided CSEA an opportunity to bargain the effects. Testing leads to quick identification of cases, quick treatment for those people, and immediate isolation to prevent spread. Early testing also helps to identify anyone who came into contact with infected people so they too can be quickly treated.
No, but CSEA is entitled to bargain effects of such decision. A recent PERB case found that an employer did not have to bargain the decision to require a vaccine during a pandemic, but it did have to bargain the effects upon request. (Regents of the University of California, July 26, 2021, PERB Dec. No. 2783H.)
No. CSEA’s Legal Department has determined that employers can legally mandate vaccination as long as they comply with anti-discrimination laws (in particular, regarding disabilities and sincere religious objections). Court cases around the country have confirmed this analysis, as courts have repeatedly upheld various kinds of vaccine and vaccine-or-test mandates imposed by public and private employers. A lawsuit against staff vaccine or testing mandates would not be successful.
As soon as practicable. The right to bargain can be lost by not promptly responding to notice of a change in working conditions like this by requesting bargaining.
Probably right now. The FDA approved COVID-19 bivalent booster shots in early fall 2022, which includes specific protection against the Omicron variant. The California DPH website says eligibility for this booster is open to anyone 12 and older so long as two months have passed since your last booster or last case of COVID.
The CDC and California DPH strongly recommend this booster shot because the effectiveness of the initial vaccines has decreased over time and the immune system, even after catching COVID, is not always able to defend against new variants.
There is no longer any California DPH mask requirement for schools, but this is subject to change. CalOSHA’s current temporary regulation requires masks in three situations: (1) for those returning to work after catching COVID; (2) when an employee has had close contact (more than 15 minutes in the last 24 hours) to a positive case; and (3) when there has been an outbreak at a workplace. Employers are free to require masking more often, so long as they bargain first with CSEA. CSEA and its chapters are legally free to require masking as a condition for meeting attendance.
Districts are required to reasonably accommodate disabilities. Generally, this has meant that districts allow persons unable to wear a face covering due to a disability to continue being present in a school if wearing a face shield with a drape on the bottom edge and the person is vaccinated and testing frequently. However, if this person is expected to be in crowded conditions for extended periods, or where community spread is high, this accommodation might be held by a court to be unduly burdensome to the district.
School employees may be disciplined for being insubordinate if they refuse to do assigned work. However, court decisions have affirmed the rights of workers to refuse assignments in situations where they reasonably believe imminent danger exists. See Labor Code section 6311. Make sure to inform your supervisor that you are willing to perform other duties. Do this in writing.
Be advised that if you decide to refuse an assignment, the appeal process is likely to take quite a while.
If you believe that you are at an increased risk due to personal health problems, you should first discuss the matter with your supervisor. This may constitute a reasonable concern warranting refusal to carry out the assignment, but it may result in your being placed onto leave of absence. Health conditions that place people at a high risk of complications from COVID-19 (for example, chronic lung disease, diabetes, or heart disease) do not prevent most people from getting the COVID-19 vaccine and getting vaccinated is essential for individuals with these conditions to protect themselves.
Please contact your Labor Relations Representative if you have any questions or concerns.
Education Code section 44032 (for public K-12 schools) and section 87032 (for community colleges) require the employer to reimburse employees for “actual and necessary” expenses incurred in the course of their employment. A similar provision of the Labor Code has been construed to require that employers pay a reasonable percentage of the employee’s internet and phone bill if the employee is expected to work from home: Cochran v. Schwan’s Home Service (2014) 228 CA4th 1137.
Check to see if your district or college has a reimbursement policy that provides details, or if your chapter has bargained an agreement detailing reimbursement. Contact your Labor Relations Representative if you believe you are entitled to reimbursement but aren’t able to get it.
Each chapter has the right to demand to bargain for safety training and adequate supplies appropriate for the chapter.
The Cal/OSHA website is a good resource for available trainings, safety rules and regulations, and hazardous materials. Cal/OSHA requires each employer to have a written COVID-19 Prevention Plan. Cal/OSHA’s Emergency Temporary Standards detail what the Prevention Plan must contain. In addition, they require the employer to identify and evaluate any workplace-specific hazards. The employer must allow employees and any “authorized employee representative” to participate in this evaluation process. This means CSEA must have a seat at the table in developing and/or refining each Prevention Plan.
LRRs and members should refer to the emergency standards themselves for precise details about what each Prevention Plan must contain. In addition, the California Department of Public Health has issued school-specific safety guidance that employers must follow. Please see the Cal/OSHA Emergency Regulation FAQ.
The best way to protect yourself and those around you is to get vaccinated against COVID-19 and boosted. Vaccines are widely available and are free to individuals whether or not you have health insurance. The vaccines have proven very safe, with at least 611 million doses already administered in the United States. You can take leave if you need time to get the shot or must miss work because of mild side effects: until 12/31/22, you are entitled to extra paid leave for this purpose by SB 114 and AB 152 (Labor Code 248.6). After that expires, in some districts CSEA has negotiated additional leave for this purpose.
When indoors, wear a mask—the best type available to you such as N95 or KN95. Stay at least 6 feet away from other people if possible. Wash your hands regularly. Follow all the workplace safety guidelines from your employer and stay informed of guidance from state and federal agencies.
If you work in food service, a new state law and Executive Order from the Governor (51-20) guarantees you the right to take a break every 30 minutes to wash your hands.
In schools and other workplaces, the biggest COVID-19 transmission risks are unvaccinated individuals who do not socially distance and do not wear face coverings, as well as crowding or lack of outside air ventilation or high-quality air filtration. Districts are required to have site-specific COVID Safety Plans to address these and other hazards. If you see a health safety hazard at your worksite, report it immediately. If your district is not adhering to this regulation, let your Labor Relations Representative or Chapter leaders know right away. Please refer to the California Department of Public Health and the Centers for Disease Control and Prevention website for more guidance and documentation on safety measures and/or concerns.
Ask your Labor Relations Representative about COVID Know Your Rights trainings hosted by your field office.
If you think you have caught this virus, don’t be afraid to pay to be tested so you know whether you are positive. Federal law requires your health insurer provide 8 free tests per month. You also need to report a positive Covid test or possible Covid symptoms to your supervisor and follow their directives about isolating from others. Cal/OSHA provides “exclusion pay” if you must stay home from work because you test positive and might have caught the virus at work, even if you’re out of sick leave. Until 12/31/22, Labor Code 248.6 provides up to 40 hours in extra paid leave to recover from Covid.
Additionally, CSEA fought hard for the passage of SB 1159, a law which creates a “rebuttable presumption” for school employees as it relates to contracting COVID-19 illness at work. SB 1159 creates a rebuttable presumption that applies to all employees, including school and community college employees, whose employers have five or more employees. This presumption goes into effect if there is a COVID-19 outbreak at the employee’s place of employment.
Your Labor Relations Representative will help determine if an outbreak has occurred as defined in the bill.
Even if there is no outbreak, you may still be legally entitled to workers compensation benefits if you contracted the illness at work. These benefits include medical care and disability payments.
If the District resists such a workers’ comp claim, contact your CSEA LRR who can refer you to attorneys who specialize in workers’ comp cases.
Yes. In February 2022 the Legislature enacted SB 114 (Labor Code 248.6), which provides two supplemental paid leave banks to employees for certain COVID-related reasons. Full-time employees get 40 hours of paid leave for a variety of reasons (including getting vaccinated, seeking a COVID diagnosis, and caring for family members) and another 40 hours if they test positive for COVID or have a family member with a positive test. Part-time employees receive less, depending on their usual work schedules. SB 114 is retroactive to January 1, 2022, and now thanks to AB 152’s adoption in August 2022, runs until December 31, 2022.
This supplemental leave is available to you in addition to your regular paid sick leave. If you took paid leave between January 1, 2022, and now, and it was for a qualifying SB 114 reason, your employer must credit your other paid leave bank from your SB 114 leave if you make a request to them.
Talk to your LRR if you run into problems using SB 114 leave.
Not unless your District approves. Many districts allow employees to use sick leave for this purpose. There no longer is a CalOSHA requirement for such quarantining with pay. Older DPH Guidance requiring quarantine is no longer in effect. Rather, if you have no symptoms, DPH merely calls for you to promptly test and stay masked for 10 days.
This is not clear.
First, under Educational Employment Relations Act (EERA) an employer must bargain with CSEA over such a new requirement before unilaterally imposing it. Second, the underlying requirement is subject to legal challenge under California Labor Code sections 96(k) and 98.6, which bar adverse actions against employees “for lawful conduct occurring during nonworking hours away from the employer’s premises.”
However, courts have interpreted these statutes more narrowly as designed to protect political activities. There is also a constitutional right to interstate travel, but it involves a balancing test weighing the interests of the employer against those of the employee.
Given the health threats from travel (airplane travel in particular) from a place with high community spread, a legal challenge might not be successful, but districts would risk paying penalties and legal fees if they guess incorrectly that an unpaid travel quarantine is lawful. Contact your LRR immediately if you hear of your district trying to require an unpaid travel quarantine.
Members who are feeling ill should have leaves available to them as a result of chapter COVID-19 effects negotiations, the Collective Bargaining Agreement (CBA), recent Cal/OSHA regulations, SB 114 and/or the California Education Code. Your Labor Relations Representative can assist you.
Districts are required by state law to allow you to use your accrued sick leave to take care of family members who are ill under the Healthy Workplace Healthy Family Act of 2014 (AB 1522). If the care is due to COVID you can use SB 114 paid leave until 12/31/22. There may be other leaves available to you at the chapter level due to agreements negotiated by your chapter. Your Labor Relations Representative can assist you.
SB 114 provides up to 40 hours of paid leave to care for a child whose place of care is closed due to COVID-19 on the premises (but this expires 12/31/22). Many districts adhere to the provisions in Labor Code section 230.8 providing up to 40 hours of unpaid leave for childcare problems. There may be other leaves available to you at the chapter level due to agreements negotiated by your chapter. Your Labor Relations Representative can assist you.
CSEA’s Board of Directors voted in September 2022 to rescind all of its requirements for attending meetings in light of CDPH withdrawing its vax-or-test requirement. This is due to the decline in effectiveness of the original vaccine against new variants, coupled with the increased availability of tests and masks.
In light of DPH’s action and the decline in the original vaccine’s effectiveness, CSEA has withdrawn its prior advisory on this issue. A decision by CSEA to provide a legal defense to a chapter sued for spreading COVID will be based on whether the Chapter has acted with reasonable care to prevent the spread of COVID, which depends on multiple factors. These include the level of spread in the locality where the chapter is meeting, whether masks were available, whether tests were encouraged, the amount of spacing between attendees, whether vaccination was encouraged, the degree of ventilation, etc.
For additional information regarding return to in-person meetings requirements, or to review frequently asked questions, visit www.csea.com/event-faqs.
Probably not, though CSEA strongly urges chapters to provide a virtual alternative to the unvaccinated so they can exercise their rights as members to engage in debate and vote. CSEA is a private association and hence not covered by the same FEHA and ADA provisions requiring accommodation of disabilities and religion as employers are bound by, unless a member’s inability to attend could adversely impact this member’s employment status (such as a grievance meeting, in which case the Chapter must offer the alternative of a recent test or remote participation such as Zoom or phone). However, CSEA strongly recommends that in all situations, unvaccinated members be provided the opportunity to attend meetings by Zoom or phone.
Yes, if the leave is an unpaid leave. If the leave is paid, the salary is reported as normal with no impact to service credit. Also, if an employee does not have SB 114 special Covid leave available and must resort to their sick leave bank, such leave will not be available to be paid out upon retirement in the form of added service credit under Gov. Code 20963.5.