The California Department of Fair Employment and Housing (DFEH) recently issued guidance on whether employers can require workers to receive a COVID-19 vaccination.
The department said the Fair Employment and Housing Act (FEHA) allows employers to mandate vaccines that have been approved by the U.S. Food and Drug Administration (FDA). However, employers may not discriminate against employees or job applicants based on a protected characteristic—such as age, race or sex—and must provide reasonable accommodations related to a worker's disability or sincerely held religious belief. Employers are prohibited from retaliating against an employee who engages in protected activity.
The DFEH noted that the FDA has authorized and recommended three COVID-19 vaccines and more may be approved.
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Fear Doesn't Have to Be Accommodated
The DFEH said that California employers must engage in an interactive dialogue with employees who have a disability-related or religious reason for refusing an FDA-approved vaccine. However, an employee who doesn't "trust that the vaccine is safe" doesn't have to be accommodated. Additionally, employers may "enforce reasonable disciplinary policies and practices" when employees resist the mandate but aren't entitled to an accommodation, so long as the employer doesn't take adverse employment action against an employee for engaging in legally protected activity—such as complaining that the policy is discriminatory.
(California Department of Fair Employment and Housing)
Asking for Relevant Medical Information
The DFEH said employers may ask workers for certain COIVD-19-related medical information through a pre-vaccination screening questionnaire if the data collected is "job-related and consistent with business necessity." The department noted that any information received must be maintained as a confidential medical record. Employers may ask for proof of vaccination if they require workers to receive a vaccine through a third-party provider. However, the DFEH said, employers should tell employees to omit medical information that could potentially disclose a disability.
"While establishing on-site vaccinations may increase vaccination rates and reduce the time workers spend at off-site vaccination centers, this guidance implicates several additional legal issues related to potential premises liability, privacy concerns, and more," said law firm Fisher Phillips.
(Fisher Phillips)
No Comment on Whether Employers Should Mandate Vaccination
The DFEH clarified that it was not weighing in on whether employers should require employees to get vaccinated. Rather, the guidance aims to help employers comply with the FEHA if they choose to mandate vaccination. Employers should seek legal advice before rolling out a mandatory vaccination policy or denying a reasonable accommodation request because it would cause the business an undue hardship.
(National Law Review)
When Employees Refuse a COVID-19 Vaccine
In addition to state laws, employer policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other federal workplace laws, according to the U.S Equal Employment Opportunity Commission. In addition to legally protected reasons, employees may have general objections to receiving a COVID-19 vaccination that do not require a reasonable accommodation. According to research by the Society for Human Resource Management (SHRM), 60 percent of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. However, 28 percent of respondents said they are willing to lose their jobs if their employer requires the COVID-19 vaccine.
Kevin Troutman, an attorney with Fisher Phillips in Houston, suggested offering incentives before adopting a hardline mandatory vaccination policy. "Communicate clearly and often with employees and help them understand how vaccinations will make for a safer workplace," he said. "Lead by example and ensure that management takes the vaccines first."
(SHRM Online)