This week, Los Angeles began enforcing its ordinance requiring certain businesses to request proof of vaccination from customers. San Francisco implemented a similar ordinance in August.
Other cities and counties, and even state legislators have shown interest in instituting more consumer-facing vaccine mandates across the state. Some businesses have also voluntarily chosen to require proof of vaccination even without an ordinance.
While a lot of media attention on vaccine mandates has been about how to address religious or medical exemption requests from employees, it is important to note that those same requests also may be raised by customers.
The Department of Fair Employment and Housing (DFEH) reminded businesses of this obligation recently when it issued a series of FAQs regarding consumer-facing vaccine mandates.
California’s Unruh Civil Rights Act prohibits businesses from discriminating against customers based on a long list of characteristics, including the person’s sex, pregnancy, race, color, religion, national origin, disability, medical condition, marital status, sexual orientation, age, and immigration status. Any business that violates the Unruh Civil Rights Act is liable for damages of at least $4,000 per violation and can be sued in court.
Therefore, just as a business is required to accommodate employees under the Fair Employment and Housing Act (FEHA), it also must accommodate customers.
If a customer enters a restaurant with a vaccine mandate and says they have a medical condition that prohibits them from being vaccinated, the restaurant is obligated to engage in the “interactive process” to determine whether the customer can be reasonably accommodated.
This could include instead requiring a negative COVID-19 test result or seating the customer outside instead of indoors. Whether an accommodation is “reasonable” is difficult to ascertain and will generally require a quick response from the business. Unlike with an employee, the customer is likely looking for a service right then and there, so the business cannot take more than a few minutes to evaluate whether an accommodation would be burdensome.
Even the DFEH acknowledges that accommodation is a case-by-case determination. A business is not required to accommodate customers if the accommodation would pose a threat to the safety of others, unduly burden the business, or cause it to fundamentally change its operations.
For example, a barbershop may not be able to serve an unvaccinated customer because they must come into close contact with the customer and would likely not have an outdoor service option available.
In addition to the uncertainty surrounding whether an accommodation is reasonable, it is unsettled whether a business must accommodate a customer’s religious beliefs.
The DFEH explains that medical conditions must be accommodated for customers, but that there is no court case on the subject of religious belief accommodations for customers. The DFEH has declined to state its view about whether the Unruh Civil Rights Act requires accommodation for a customer’s religious beliefs.
Rather, the DFEH “recommends” that businesses follow the same process as for medical accommodations by engaging in the interactive process.
The lack of guidance on this issue puts businesses in a bind because they could face costly litigation if they refuse to serve a customer claiming a religious exemption. Whether the Unruh Civil Rights Act requires religious accommodations is surely to be tested through a private lawsuit.
Any local or state entity considering enacting consumer-facing vaccine mandates should take the issue of accommodations into account and what that could mean for its business community, especially the risk of exposing its small businesses to lawsuits.
At the very least, clarity must be given to businesses about steps for how to address accommodation requests and whether religious accommodations must be given to limit any resulting liability for employers trying in good faith to comply with the law.