California is preparing to reopen, and employers are readying to welcome their workforce back to offices. One of the biggest questions on the minds of many business owners is how to bring their workforce back together in “real time” while still maintaining the safety of all employees, as they are fundamentally obligated under Cal-OSHA to do. One of the hottest topics at the moment is mandatory vaccines – whether employers can require that employees returning to an office or job site be vaccinated, or that new job applicants be vaccinated as a condition of an offer of employment.
As we blogged previously here, it is clear that under California law, employers can require that their employees be vaccinated. But the question of whether they should, remains. Mandatory vaccination implicates a complicated web of rights and laws, and if not handled properly, could create significant liability for unsuspecting employers.
What Does the DFEH Say?
Recently, on March 4, 2021, the California Department of Fair Employment and Housing (DFEH) issued guidance on whether employers can require workers to receive a COVID-19 vaccination. The DFEH said that the Fair Employment and Housing Act (FEHA) permits employers to mandate vaccines approved by the U.S. Food and Drug Administration (FDA). But the DFEH made clear that it was not giving an opinion of whether employers should require employees to get vaccinated. The 10-page “DFEH Employment Information on COVID-19” was issued only to help guide employers in remaining compliant with FEHA if they chose to mandate vaccination.
The DFEH guidance makes clear that in requiring a vaccine, employers may not discriminate against employees or job applicants based on a protected characteristic (such as age, race, sex, religion, disability, etc.), and that employers must provide reasonable accommodations for a worker’s disability or sincerely-held religious belief. The DFEH further reiterated that employers may not retaliate against employees who engage in protected activity.
What Does This Mean – Practically?
If an employee has a disability-related or religious reason for refusing an FDA-approved vaccine, the DFEH clarified that California employers must engage in an “interactive dialogue” with that employee and make reasonable accommodation when possible. An employee’s subjective belief or fear that the vaccines “aren’t safe” does not need to be accommodated. Further, if an employee resists the mandatory vaccination policy but is ineligible for an accommodation based on disability or sincerely-held religious belief or practice, employers can “enforce reasonable disciplinary policies and practices” – provided that the employer does not retaliate against an employee for engaging in legally protected activity (such as complaining that the policy is discriminatory).
In addition to California’s FEHA, according to the U.S. Equal Employment Opportunity Commission (EEOC), employers seeking to implement a mandatory vaccination policy must also comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other federal workplace laws. Even though employees may not have a legally-protected reason to refuse a vaccine or be entitled to a reasonable accommodation, employees may have general fears or objections. Consequently, employers may wish to create an incentive program for obtaining a vaccine rather than a hardline, mandatory requirement unless absolutely necessary.
What Else Can Employers Do?
The DFEH guidance also clarified a number of additional things that employers can do related to COVID-19 and vaccines. For example, the DFEH said that employers can ask workers for certain COVID-19-related medical information through a pre-vaccination screening questionnaire provided that the data collected is job-related and consistent with business necessity. The DFEH also noted that any information obtained through such screening must be maintained as a confidential medical record. The DFEH also said employers may request proof of vaccination if they require employees to receive the vaccine through a third-party provider – but again, the DFEH reminded employers to be careful to instruct employees to omit medical information that could potentially disclose a disability.
Additionally, the DFEH clarified some additional actions that employers can take related to COVID-19 after employees return to the workplace – including taking employees’ temperatures before allowing entrance; requiring a COVID-19 test (if job-related and consistent with business necessity, and only the viral test, not the antibody test); asking about COVID-19 symptoms; requiring employees to wear personal protection equipment (PPE), such as masks and gloves, and use hand sanitizer; continuing to maintain social distance; and sending employees home if they display symptoms.
Employers are encouraged to read and download the complete DFEH guidance here.
Reach out to Workplace Legal if you have any questions about dealing with the “new normal” we all face as long as COVID-19 remains a part of our lives.