In Episode 131 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss employer-mandated COVID-19 vaccines and religious accommodation requests.
As the COVID-19 Delta variant began to take hold across the country, the issue of employer-mandated COVID-19 vaccinations has become top of mind for many employers, Frank tells podcast listeners.
There is naturally a lot of confusion and concern surrounding this topic, particularly what it means to mandate vaccination, what employers are permitted to do, and what to do if an employee says, “No, I’m not going to get vaccinated.”
So, to start off, Frank says, can employers mandate that employees be vaccinated against COVID-19?
Can Vaccines Be Required?
Shaw says that employers can indeed require vaccinations.
“Yes—and it’s very rare when I can give you a black-and-white answer to anything that is employment law-related,” she says.
There has been a big push by Governor Gavin Newsom to encourage employers to require vaccinations. His recent executive order requires vaccinations for health care workers and those who work in education.
Shaw explains that two orders were issued. An earlier order indicated that employees could opt for vaccination or undergo regular testing. On August 5, however, a new order was issued stating that testing is no longer an option and workers in designated job industries must take the vaccine unless they have a religious or disability exemption.
It’s well accepted in the medical community that the best way to prevent COVID-19 is to get vaccinated, Shaw points out. Other protection methods, such as social distancing, masks/respirators and testing are helpful, but the problem with testing is that someone can still spread the virus while they are waiting for their test results.
So, Shaw says, testing is helpful, especially when combined with using an N95 respirator, but it is nowhere near the protection you get with being vaccinated.
Religious Accommodation Requests
Vaccinations may be required unless an employee has a medical disability or a sincerely held religious belief that precludes them from vaccination.
The religious accommodation requests that employers were accustomed to seeing prior to COVID-19 usually pertained to scheduling or grooming practices, Frank says. But now employers are left to apply this accommodation in a very difficult situation.
A church near Sacramento, for example, is publicly giving out religious accommodation documentation. What is an employer to do if an employee brings in an exemption from their church, Frank asks?
It’s very hard to prove that a medical disability precludes someone from taking the vaccine, so many employers are seeing a rise in religious accommodation requests because the standard is pretty low, Shaw says.
The accommodation can be granted if there is a connection between the religious belief or practice and the inability to get the vaccination. It’s not a “preference” — it’s “inability,” she stresses.
Workers seeking this accommodation usually get a notice from their church asking for an exemption based on their “conscience.” Well, Shaw says, that’s not necessarily enough to prove a sincerely held belief.
If handed such an accommodation request, Shaw suggests that the employer ask the worker, “What is it about your religious beliefs that precludes you from being vaccinated?”
Should the employee insist on a religious accommodation, the employer shouldn’t question the employee’s sincerity. Instead, Shaw suggests that employers ask the employee what type of accommodation they want. Would they prefer to be tested on a regular basis and wear a respirator?
Employers shouldn’t immediately jump to termination, because in the middle of all of this there is a labor shortage. Employers should look over other factors and consider what makes sense for their business practice, Shaw says.
Frank agrees, pointing out that fighting an employee on this may not be worth the trouble. This doesn’t mean, however, that employers can disregard the Governor’s orders. Employers must abide by the order if it applies to them.
Lastly, Frank urges employers to stay up-to-date with their local ordinances as those often are more stringent than state and federal laws, and the stricter law takes precedence.
Frank recommends that employers bookmark their local health department’s website on their computer and check weekly for updates.