Will your job require a COVID vaccination? Why many California businesses aren’t so sure

August 2, 2021

Sacramento Bee

In this recent Sacramento Bee article, Downey Brand managing partner Scott Shapiro discusses COVID-19 vaccination policies for private employers.

Read the full article below, or view the article on the Sacramento Bee’s website.

By Dale Kasler, Reporter, Sacramento Bee

Scott Shapiro and the vast majority of his co-workers at the Downey Brand law firm in Sacramento have been vaccinated against COVID-19. But Shapiro, the firm’s managing partner, isn’t ready to order the remaining employees to get vaccinated.

Among the reasons: He doesn’t want them to leave.

“In this employment market, you don’t want to lose good people,” Shapiro said.

Government workers are being told to line up for their COVID-19 vaccines. Gov. Gavin Newsom has ordered state workers and California health care employees to get vaccinated. Sacramento Mayor Darrell Steinberg has proposed a similar requirement for city employees. The UC and CSU systems have declared that students must get vaccinated before returning to campus this fall. President Joe Biden issued a vaccine mandate for the federal government workforce on Thursday.

The private sector, though, is another matter.

While a few high-profile employers have issued vaccine mandates, including Google, Facebook and the New York offices of Morgan Stanley, most companies are taking a more flexible approach. They’re encouraging employees to get vaccinated but they’re not making the shots a condition for returning to the office.

Some, such as Downey Brand, are allowing employees to go unvaccinated but telling them they must wear masks at work — a policy that mirrors the state’s mandate.

The labor shortage that’s bedeviling the nation’s economic recovery is contributing to the compromise strategy by many businesses.

“For certain jobs, (companies) are still having difficulty finding workers,” said Michael Bernick, special counsel at the Duane Morris law firm in San Francisco and a former director of the California Employment Development Department.

Although some labor-market experts believe workers will flood back into the workforce once enhanced unemployment benefits expire in early September, Bernick said the rise of the delta variant of the coronavirus calls that prediction into question.

If employers push too hard on vaccines, “they’re concerned about losing existing employees to other firms,” he said.

Experts say employers have a broad legal authority to mandate vaccines for their workers, as long as they make exceptions for health or religious reasons.

But there are some gray areas — notably, the COVID-19 vaccines haven’t been fully approved yet. Instead, they’re being administered under the Food and Drug Administration’s “emergency use authorization” regulations. Because of this emergency status, some legal experts believe a vaccine mandate could be overturned in court. But the Biden administration believes otherwise; a recent advisory opinion by Dawn Johnsen, the acting assistant U.S. attorney general, says the government has the power to require vaccines.

Nevertheless, resistance has emerged to some of the vaccine mandates. Richard Louis Brown, the president of Local 1000 of the Service Employees International Union, which represents 100,000 state workers, is protesting Newsom’s order.

Meanwhile, the California Division of Occupational Safety and Health, better known as Cal-OSHA, says unvaccinated workers should wear masks indoors.

But companies still struggle for answers. Many have been planning to fully reopen their workplaces in the coming weeks — but are confronting a surge in COVID-19 infections, brought on by the delta variant.

Meanwhile, a dizzying array of new directives from public health departments — on vaccines, on masks — has many businesses wondering what to do. On Thursday, Sacramento County became the latest county in California to require masks in indoor public spaces, regardless of vaccination status.


“Confusion reigns,” said Rick Niello, president of The Niello Co. chain of car dealerships in the Sacramento region. “We’re looking for a little bit of guidance, like a lot of people. … We will do what is required.”

Employers were responding on the fly to ever-changing requirements. The Mastagni Holstedt law firm in Sacramento quickly directed its employees Thursday to wear masks whether they’re vaccinated or not, in line with the county’s new orders.

But as far as vaccine mandates are concerned, “we’re still evaluating that,” said the firm’s founder David P. Mastagni.

News of the delta variant seems to be ramping up Californians’ appetite for vaccines. First-dose vaccinations have jumped 21% in the past week, with much of the improvement coming in the rural counties where vaccination rates had been lagging.

Yet some healthcare experts say those improved vaccine rates aren’t good enough. “We can’t wait to persuade people,” said Dr. Arthur Caplan, a bioethicist at New York University’s Grossman School of Medicine.

Caplan said mandates are the answer — and he added that vaccination rates have soared at the Houston hospital that made headlines by suspending more than 100 workers who’d refused shots.

Companies in the entertainment business face the additional challenge of not offending guests but still maintaining safety protocols.

The Sacramento Kings — who were preparing to host an “NBA Draft Party” Thursday, the first mass-attendance event since the pandemic started — have taken a hybrid approach. Fans who enter Golden 1 Center are expected to be either vaccinated or to have tested negative for COVID-19 in the prior 72 hours. The team is following Cal-OSHA’s rules for employees — those who aren’t vaccinated have to wear masks.

At Thunder Valley Casino near Lincoln, “guests are on the honor system, and if they’re not vaccinated, they’re asked to wear a mask,” said casino spokesman Doug Elmets. Among the tribal casino’s 2,500 workers, those who don’t have proof of vaccination must wear a mask and “undergo weekly, randomized testing,” he added.

Other employers simply don’t want to have anything to do with mandates.

At the Auburn Ale House in downtown Auburn, “we believe in educated adults being able to make their own decisions on risk tolerance and what they choose to put in their bodies,” said co-owner Lisa Ford.

The restaurant’s 70 employees are expected to “self-screen” before they come to work to ensure “they’re fever-free and healthy,” Ford said. But nobody is being required to get the COVID-19 vaccine.

Tamara Bennett, manager of Q1227 restaurant in Roseville, said the restaurant isn’t planning to mandate vaccines for its workers — but is watching the surge in COVID-19 infections closely.

“We’re going to monitor how things go … and govern ourselves accordingly,” she said. “Everything is happening so rapidly.”

What’s truly frightening, she said, is the prospect of the delta variant sparking another severe lockdown order.

“We’re all surviving as restaurant owners,” she said. “I can’t tell you how devastating that would be.”