Seyfarth Synopsis: On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) provided some much needed clarity in its updated COVID-19 Related Guidance. The Guidance answers many pressing questions for employers regarding COVID-19, including the all-important question: Can employers mandate their employees to get a vaccine?
In short, yes, California employers may require their employees to receive a FDA-approved vaccination for COVID-19. But there are caveats. Notably, any policy or practice mandating employees be vaccinated must comply with the Fair Employment and Housing Act (“FEHA”).
How To Comply with FEHA When Mandating COVID-19 Vaccinations
Do Not Discriminate or Harass Based upon a Protected Characteristic
Discrimination and harassment in the workplace based upon a protected characteristic are expressly prohibited under the FEHA. Any employer’s policies and practices requiring or encouraging vaccination may not discriminate against or harass employees or job applicants based on any protected characteristic (for example, disability, perceived disability, or religion).
Disabilities and Sincerely Held Religious Beliefs Must Be Reasonably Accommodated
An employee’s objection to complying with a vaccination policy due to their disability or sincerely held religious belief or practices triggers the employer’s obligation to engage in the interactive process, accommodating the employee where possible. California’s approach here is very similar to EEOC guidance regarding federal law, as we previously addressed here.
Whether a reasonable accommodation is feasible is a very fact specific inquiry. But, the DFEH guidance gave examples of possible reasonable accommodations for disability-based objections, such as telecommuting and on-site safeguards that may allow an employee to be on-site without endangering the employee or others. In the religious objection context, the DFEH guidance notes that reasonable accommodation is one that eliminates the conflict between the employee’s religious belief (or “creed”) and the vaccine. Examples of this could include job structuring, job reassignment, or modification of work practices. However, the DFEH guidance notes that unless specifically requested by an employee, an accommodation related to religious beliefs or practices will not be considered reasonable if it results in the segregation of the employee from other employees or the public.
An employer may exclude the employee from the workplace if an employer can show that 1) the accommodation would impose undue hardship, 2) the employee cannot perform their essential duties even with reasonable accommodations, or 3) the individual cannot perform their essential duties without endangering employees or others, even with a reasonable accommodation.
Do Not Retaliate Against an Employee for Engaging in Protected Activity
Requesting an accommodation due to one’s disability or sincerely-held religious belief cannot result in retaliation. Likewise, employers must safeguard employees from retaliation for engaging in any protected activity related to a vaccination policy or practice, such as complaining that an employer’s mandatory vaccine policy is discriminatory or has a disparate impact on a protected group.
No Accommodation for Philosophical Objections
Employees may be hesitant to be vaccinated because they do not “trust that the vaccine is safe,” they don’t believe in vaccines based on some personal philosophy, or they have similar objections unrelated to a disability or sincerely held religious belief. Employers need not reasonably accommodate these employees. While cautioning against retaliation for engaging in protected activity, the DFEH gives the green light for employers to impose reasonable discipline in this situation if any employee refuses to participate in a mandatory vaccination program.
What Information An Employer Can Receive Related to Vaccinations
Mandatory “Proof of Vaccination” Allowed
If an employee secures a vaccine on their own (for example, through their own medical provider or local pharmacy), employers can ask employees for a proof of vaccination. Doing so is not a disability related inquiry, a religious creed related inquiry, or a medical examination, under the DFEH guidance. In requesting this proof, the employer should instruct the employee to eliminate or redact any medical information (but for the vaccination record), and should maintain the proof of vaccine as a confidential medical record.
Employers May be Able to Elicit Medical Information When Administering Vaccines Themselves
If an employer is administering the vaccine—rather than having employees go to an third party—the employer may need to present employees with a pre-vaccination screening questionnaire. Similar to COVID-19 health screening before entering the workplace, such questions presented by the employer might elicit some information about a disability. Consequently, such questions must be both “consistent with business necessity” and “job-related.” Likewise, any employer-kept records of vaccination, whether the questionnaire responses or proof of vaccination, must be treated as confidential medical records.
While the DFEH guidance stopped short of commenting on whether an employer should make their employees get vaccinated, the DFEH is clear that disability and religious creed related objections should be met with reasonable accommodations where possible. These are fact specific inquires which, along with the implementation of a mandatory vaccination program and policy, should be discussed with legal counsel. Employers should also keep in mind that this landscape is subject to change. For more information on COVID-19 related issues, please contact your favorite Seyfarth attorney. Also, feel free to attend Seyfarth’s free upcoming webinar on vaccination related issues, which you can register for here.