May an employer require its California employees to be vaccinated against COVID-19? According to recent guidance from the state Department of Fair Employment and Housing, the short answer is yes.
On March 4, the DFEH issued an updated COVID-19 FAQ for Employers. According to the FAQs, an employer may require employees to receive an FDA-approved vaccination against COVID-19 as long as the employer complies with the Fair Employment and Housing Act. Note, however, that the DFEH did not advise about whether employers should mandate vaccinations.
The FAQs provide specific guidance about accommodating employees with a disability or sincerely held religious belief. In particular, the FAQs state as follows:
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If an employee objects to getting vaccinated because of disability or on the basis of a sincerely held religious belief or practice, the employer must engage in the interactive process with the employee to identify any reasonable accommodation that will allow the employee to continue working.
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Employers must provide a reasonable accommodation unless the employer can demonstrate (1) an undue hardship, (2) the employee is unable to perform the employee’s essential duties even with reasonable accommodations, or (3) 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.
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Employers cannot retaliate against employees who request an accommodation because of a disability or a sincerely held religious belief or practice.
The DFEH provides examples of reasonable accommodation options employers may consider, such as allowing the employee to work from home, implementing processes that would enable the employee to work without endangering the employee or others, job restructuring, job reassignment, or modification of work practices.
What about employees who “do not trust that the vaccine is safe”? According to the DFEH, a reasonable accommodation is unnecessary unless the employee objects to the vaccine for a disability-related reason or because of a sincerely held religious belief. However, although not specifically addressed by the DFEH, employers should also accommodate pregnant women who have been advised against getting vaccinated during their pregnancies.
Although employers may discipline employees who refuse to get vaccinated absent a disability or sincerely held religious belief, employers cannot retaliate against employees for engaging in protected activity (i.e., opposing practices prohibited by the FEHA). The Guidance states, “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.”
Finally, employers may ask employees to present proof of vaccination. However, asking for more may be considered an improper medical inquiry, which is strictly prohibited under most circumstances. Any proof of vaccination must be maintained in the employee's confidential medical file.
The FAQs provide long-awaited guidance for California employers on vaccination policies and related issues. However, a caution is in order. Although the agency says that employers can mandate that their employees be vaccinated, the FAQs are simply guidance that has not yet been tested by the California courts. It is not clear how the courts will react to mandatory COVID vaccination policies. A decision on mandating employee vaccinations requires a detailed analysis of the workforce and the objectives that the employer seeks to achieve. Employers who are considering mandated vaccinations are encouraged to proceed with caution and should consult with competent legal counsel.
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