On March 4, 2021, the California Department of Fair Employment and Housing (DFEH) updated its COVID-19 guidance, addressing several vaccination-related questions. The updated guidance replaces the version last updated on July 24, 2020.
The DFEH answers one of employers’ biggest questions — can they require employees to get vaccinated? Yes, says the DFEH, an employer may require employees to receive a Food and Drug Administration (FDA)-approved vaccination so long as the employer complies with the Fair Employment and Housing Act (FEHA), meaning it “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).”
The DFEH clarifies that it’s not providing guidance on whether or to what extent an employer should mandate vaccination within its workforce. Rather, it only addresses how an employer should comply with the FEHA if it decides to require employees to be vaccinated.
If an employee objects to vaccination on the basis of disability, employers must engage in the interactive process with, and reasonably accommodate, the employee. The DFEH encourages employers to consider a variety of accommodations, including whether employees can work from home or whether other procedures or safeguards could be put in place at the worksite that would enable the employee to work without endangering others.
If an employee objects to vaccination based on sincerely held religious beliefs or practices, employers must also accommodate those employees. Similar to responding to a disability, employers should engage in the interactive process with the employee to identify a reasonable accommodation that eliminates the conflict between the religious belief or practice and the vaccination requirement. The DFEH says this could include job restructuring, reassignment or modification of work practices.
Employers don’t have to provide accommodations that result in “undue hardship.” In those circumstances, the DFEH says employers may “exclude the employee from the workplace.”
Undue hardship is a difficult legal standard to meet. To the extent possible, employers should be flexible when it comes to accommodations. If an employer believes a particular request may cause an undue hardship, they should consult with legal counsel about their circumstances before denying an accommodation.
Not Required, But…
If an employee objects to the vaccine solely because they don’t “trust that the vaccine is safe,” the DFEH says that employers likely don’t have to accommodate them.
If the employee doesn’t have a disability or sincerely held religious reason for not being vaccinated, the employer is not legally required under the FEHA to accommodate the employee.
The new FAQs explain that employers can discipline a resistant employee but caution that employers cannot retaliate against employees for engaging in protected activities.
For example, an employer may not retaliate against someone who alleges that the employer’s vaccination policy discriminates against or has a disparate impact on a protected group.
The new guidance also clarifies that employers administering a COVID-19 vaccination program themselves may ask employees for medical information, such as a pre-vaccination screening questionnaire, so long as the questions are “job related and consistent with business necessity,” another legal standard defined in the DFEH regulations. Employers should consult with legal counsel about requesting medical information from employees or applicants.
If the vaccination is administered by a third party, employers can require an employee or job applicant to provide proof of vaccination. The DFEH explains that simply asking for proof of vaccination is not related to disability, religious creed or a medical examination; however, the documentation could potentially include disability-related medical information, so employers should instruct employees or applicants to omit any medical information from such documentation.
Employers should review the DFEH’s updated guidance and consult with legal counsel before implementing a mandatory vaccination policy.