Concerning telemedicine, proposed offensive amendment to allow employers to mandate COVID-19 Vaccines for employees not adopted

State: CA
Bill Number: AB 1102
Position: WATCH
Action Required: None
Status: Enacted, signed by Governor 9/28/2022, effective 1/1/2023, offensive vaccine amendment never adopted

Legislation Details:

UPDATE: 9/28/2022 - AB 1102 was signed by Governor Newsom on 9/28/2022, with an effective date of 1/1/2023. The chaptered version addresses telemedicine and the offensive vaccine amendments that were proposed were never adopted. 

UPDATE: 8/31/2022 - AB 1102 passed and was sent to engrossing and enrolling on 8/31/2022.  The final version addresses telemedicine and the offensive vaccine amendments that were proposed were never adopted so NVIC's position is watch. 

UPDATE: 9/10/2021 - Assembly Member Low issued a statement on twitter saying in part that while he was disappointed they would not be passing a this bill he will continue to exhaust all legislative avenues when it comes to protecting the health and prosperity of all Californians.  https://twitter.com/CapitolAlert/status/1435703951475687424

UPDATE: 9/8/2021 - Additional amendments were drafted for AB 1102 that include employer mandates for COVID-19 Vaccines and the bill is currently showing as item #56 on the calendar for 3rd reading by the full Senate on 9/8/2021.  Live streaming video of the Senate floor session is available here - https://www.senate.ca.gov/calendar

New amendments were drafted for AB 1102 on 9/2/2021: 

SEC. 2. Section 12940 of the Government Code is amended to read:

(q) (1) Nothing in this section or any other provision of law shall prevent an employer or other entity covered by this part from requiring as a condition of employment or a training program leading to employment an employee or applicant to be fully vaccinated against COVID-19 by a vaccine authorized, including pursuant to emergency use authorization, by the United States Food and Drug Administration or the World Health Organization. (2) An employer shall provide notice of any COVID-19 vaccine mandate before it is implemented, including, but not limited to, notice that an employee could be terminated for failure to comply. From the date an employer or other entity covered by this part requires as a condition of employment or a training program leading to employment for an employee to be fully vaccinated against COVID-19 by a vaccine authorized by the United States Food and Drug Administration or the World Health Organization, an employer shall offer an existing employee a reasonable amount of time, in consideration of vaccine protocols and availability, to come into compliance. (3) (A) An employer or other entity covered by this part may require an employee or applicant to show proof of vaccination against COVID-19 through physical or electronic records that reasonably appear genuine and relate to the employee or applicant, including, but not limited to, any of the following: (i) A COVID-19 Vaccination Record Card issued by the federal Centers for Disease Control and Prevention. (ii) An International Certificate of Vaccination or Prophylaxis, also known as a Yellow Card, created by the World Health Organization. (iii) Documentation of vaccination from a health care provider consistent with their scope of practice. (iv) A photo of documentation of vaccination, including, but not limited to, those specified in subparagraphs (A) to (C), inclusive. (v) A digital record that includes a quick response code that would display to the reader the employee’s or applicant’s name, date of birth, vaccine dates, and vaccine type if scanned by a SMART Health Card reader. (B) Notwithstanding any other law, an employer or other entity covered by this part may retain proof of an employee’s or applicant’s COVID-19 vaccination status required pursuant to this paragraph. If an employer or other entity covered by this part retains proof of an employee’s or applicant’s COVID-19 vaccination status pursuant to this paragraph, the employer or entity shall maintain the proof in a manner that complies with federal and state privacy laws. If an employee or applicant requests an accommodation under subdivision (m) or (n), an employer or entity covered by this part may request reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodations. The employer or entity shall not require the employee or applicant to disclose their medical diagnosis. (C) An employer or other entity covered by this part or authorized third party or agent that obtains proof of an employee’s or applicant’s COVID-19 vaccination status pursuant to this paragraph shall not share, transfer, or sell that information with or to another third party, unless authorized to do so by the employee or applicant or for purposes of disclosure to a governmental health agency. An employer or other entity covered by this part may require an employee or applicant to confirm in writing that the employee has provided the employer or entity with proof of their vaccination against COVID-19 and the date upon which the employer or entity reviewed the proof. (D) On or before October 31, 2021, the Department of Fair Employment and Housing shall provide guidance to employers and other entities covered by this part on what documentation an employer or other entity covered by this part may keep for purposes of monitoring and confirming vaccination status. (4) (A) This subdivision does not limit or alter the duties or defenses under subdivisions (l), (m), and (n) of an employer or other entity covered by this part. An employer or other entity covered by this part may require an employee or applicant to submit to regular testing to confirm COVID-19-negative status, and shall comply with this part to ensure reasonable accommodations and protections for employees or applicants protected under subdivisions (l) and (m). (B) If any employer or other entity covered by this part requires an employee or applicant to submit to regular testing to confirm COVID-19 negative status, it shall be responsible for paying the cost of the test. (C) If an employee or applicant requests regular testing to confirm COVID-19 negative status as a reasonable accommodation under subdivision (l), (m), or (n), the employer or other entity covered by this part may take the cost of testing into account when determining whether that accommodation would constitute an undue hardship. (5) This subdivision also applies to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry. (6) A person is considered fully vaccinated against COVID-19 two weeks or more after they have received the second dose in a two-dose series authorized, including pursuant to emergency use authorization, by the United States Food and Drug Administration or the World Health Organization or two weeks or more after they have received an authorized single-dose vaccine. This does not preclude employers from requiring one or more additional doses of COVID-19 vaccines if the doses are recommended by the federal Centers for Disease Control and Prevention or by the World Health Organization and available to individuals as recommended. (7) This subdivision does not alter or diminish the rights, responsibilities, or obligations in a collective bargaining agreement. (8) This subdivision is declaratory of existing law. (r) This section shall remain in effect only until January 1, 2024, and as of that date is repealed.

Summary from 9/1/2021 proposed amendments:

This bill would declare that provisions of FEHA or any other law do not prevent an employer or an entity covered by FEHA from requiring as a condition of employment or a training program leading to employment an employee or applicant to be fully vaccinated, as described, against COVID-19 by a vaccine authorized, including pursuant to emergency use authorization, by the United States Food and Drug Administration or the World Health Organization. The bill would authorize the employer or entity to require an employee or applicant to show proof of vaccination, as specified. The bill would authorize the employer or entity to retain proof, as specified. If an employee or applicant requests an accommodation, as specified, the bill would authorize the employer or entity to request reasonable medical documentation confirming the existence of the disability and the need for reasonable accommodation, but would prohibit the employer or entity from requiring the employee or applicant to disclose their medical diagnosis. The bill would authorize an employer or entity to require an employee to confirm in writing that the employee has provided the employer or entity with proof of their vaccination against COVID-19 and the date upon which the employer or entity reviewed the proof. The bill would require the department, on or before October 31, 2021, to provide guidance to employers and entities on what documentation they are authorized to keep for purposes of monitoring and confirming vaccination status. The bill would provide that its provisions do not limit or alter an employer’s duties or defenses with regard to reasonable accommodation. The bill would authorize the employer or entity to require an employee or applicant to submit to regular testing to confirm COVID-19-negative status. The bill would make an employer or entity that requires an employee or applicant to submit to regular COVID-19 testing responsible for paying the cost of the test. If an employee or applicant requests regular COVID-19 testing as a reasonable accommodation, the bill would authorize the employer or entity to take the cost of testing into account when determining whether that accommodation would constitute an undue hardship. The bill would declare these provisions to apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry. The bill would declare that these provisions do not alter or diminish responsibilities and obligations in an existing collective bargaining agreement. The bill would declare these provisions to be declaratory of existing law. The bill would make related findings and declarations. The bill would repeal its provisions on January 1, 2024. This bill would declare that it is to take effect immediately as an urgency statute.

UPDATE: 9/1/2021 - AB 1102 was not heard by the Senate on 8/31/2021.  It is now on the calendar to be heard by the Senate on 9/1/2021 as item # 79. 

AB 1102 as introduced addresses telephone medical advice services.  This bill is sponsored by Assembly Member Low. The bill is on the calendar for 3rd reading by the full Senate on 8/31/2021.   

Amendments to AB 1102 were drafted on 8/25/2021 that would gut and amend the bill to establish in state law that employers who mandate COVID-19 Vaccines for their employees are not discriminating and it is not considered an unlawful employment practice under current law, the California Fair Employment and Housing Act (FEHA).  

Current law - 12940 states:  

It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

These proposed amendments have not been posted on the legislative web site as of 10:00 AM on 8/27/2021. 

A copy of the amendments is available in the news articleAnother Gutted Bill Amended to Compel CA Employers to Require COVID Vaccine as Condition of Employment, by Katy Grimes and published in the California Globe on 8/26/2021. 

https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1102 - text, status and history for AB 1102