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Mandatory Employee COVID-19 Vaccines: California Issues Guidance

On March 4, 2021, the California Department of Fair Employment And Housing (“DFEH”) updated their FAQ guidance on employment and COVID-19.  The FAQ touches on a number of issues, and specifically addresses mandatory vaccines at work.  The FAQ expands on the federal guidance from the EEOC (discussed in more detail in this Forbes article by Aaron Colby).

Below is the FAQ section about mandatory vaccines at work, with key portions emphasized.

May an employer require its employees to be vaccinated against COVID-19?

Short Answer: Under the FEHA, an employer may require employees to receive an FDA- approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Explanation: The U.S. Food and Drug Administration (FDA) authorized and recommended three vaccines against COVID-19 infection, and the FDA may approve other vaccines for use in the United States. As safe and effective vaccines against COVID-19 infection become more widely available, employers may wish to encourage their employees to get vaccinated.

Here, DFEH does not provide guidance on whether or to what extent an employer should mandate vaccination within its workforce. Rather, this FAQ and the following FAQs address how an employer complies with the FEHA if it decides to require employees to be vaccinated against COVID-19 infection with an FDA-approved vaccine.  The Fair Employment And Housing Act (“FEHA”) prohibits discrimination and harassment on the basis of a protected characteristic; therefore, if an employer mandates or encourages vaccination in its workforce, the employer’s vaccination policy or practice must not discriminate against or harass employees or job applicants based on a protected characteristic, such as disability, perceived disability, or religion.

In addition, as explained in the next FAQs, the FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19, as well as prohibits employers from retaliating against anyone for engaging in protected activity.

If an employer requires vaccination against COVID-19 in its workforce, must the employer reasonably accommodate employees with disabilities?

Yes. The FEHA requires employers to reasonably accommodate employees’ known disabilities. Therefore, if an employer mandates vaccination in its workforce, and an employee objects to vaccination on the basis of disability, the employer must engage in the interactive process with, and reasonably accommodate, the employee with a disability- related reason for not being vaccinated, and the employer may not retaliate against an employee for requesting such an accommodation. However, if the employer shows that the accommodation imposes an undue hardship, the employee is unable to perform the employee’s essential duties even with reasonable accommodations, or the employee cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations, the employer may exclude the employee from the workplace. Whether a reasonable accommodation exists is a fact-specific determination. Among the accommodations that an employer and employee might consider are whether the employee is able to work from home or whether reasonable procedures and safeguards could be put in place at the worksite that would enable to employee to work without endangering the employee or others.

If an employer requires vaccination against COVID-19 in its workforce, must the employer reasonably accommodate employees with a sincerely- held religious belief or practice?

Yes. The FEHA requires employers to reasonably accommodate employees’ known sincerely-held religious beliefs and practices (also known as religious creed). Therefore, if an employer mandates vaccination in its workforce, and an employee objects to vaccination on the basis of a sincerely-held religious belief or practice, the employer must reasonably accommodate the employee, and may not retaliate against an employee for requesting such an accommodation. Employers should engage in an interactive process with the employee similar to the disability context. Generally, a reasonable accommodation is one that eliminates the conflict between the religious belief or practice and the vaccination requirement and may include, but is not limited to, job restructuring, job reassignment, or modification of work practices. However, unless specifically requested by the employee, an accommodation related to religious creed is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public. If the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace.

If an employer requires its employees to be vaccinated against COVID-19 and an employee objects to receiving a vaccination because they do not “trust that the vaccine is safe,” must the employer reasonably accommodate the employee?

If an employee does not have a disability reason or sincerely-held religious reason for not being vaccinated with an FDA-approved vaccine, the employer is not legally required by the FEHA to reasonably accommodate the employee.

If an employer requires its employees to be vaccinated against COVID-19 and an employee questions the wisdom of or resists the mandate (but does not request a reasonable accommodation related to their disability or religious creed), can the employer discipline the employee?

Employers are permitted to enforce reasonable disciplinary policies and practices but the FEHA prohibits employers from retaliating against any employee for engaging in protected activity. As detailed in California Code of Regulations, title 2, section 11021, employers may not discipline or otherwise retaliate against an employee because that individual has opposed practices prohibited by the FEHA. For example, an employer may not retaliate against someone who alleges that the employer’s vaccination policy intentionally discriminates on the basis of race, national origin, or another protected characteristic, or has a disparate impact on a protected group.

If an employer administers a COVID-19 vaccination program, may the employer ask employees for medical information relevant to vaccination?

Employers may generally ask their employees to answer questions regarding COVID-19, such as inquiring whether an employee entering a workplace is experiencing COVID-19 symptoms. If an employer itself administers a vaccination program, the employer may seek to have employees answer certain questions that could elicit information about a disability—including questions on a pre-vaccination screening questionnaire—so long as the inquiry is “job-related and consistent with business necessity.” Any retained record of employee or applicant vaccination must be maintained as a confidential medical record.

If an employer requires its employees to receive a vaccination against COVID-19 administered by a third-party, may the employer require an employee or applicant to submit “proof” of vaccination?

Yes. Because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability- related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.

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Current or former employees with questions about their own situation should contact Colby Law Firm.

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