The California Department of Fair Employment and Housing (DFEH) updated its COVID-19 workplace guidelines on March 4, 2021, to include mandatory vaccination programs. In short, employers can require employees to be vaccinated – so long as the employer follows the requirements set forth under the Fair Employment and Housing Act (FEHA).
If an employer mandates a COVID-19 vaccine approved by the Food and Drug Administration (FDA), the DFEH offers the following explanations to comply with FEHA regulations:
The mandatory vaccination program does not discriminate against or harass workers or job applicants based on a protected characteristic – According to the FEHA, employers are prohibited from discriminating against or harassing employees based on protected characteristics, such as disability and sincerely-held religious beliefs/practices and cannot retaliate against anyone for engaging in protective activity, including asking for a reasonable accommodation.
Employers must provide reasonable accommodation to employees with disabilities – The FEHA requires employers to reasonably accommodate workers with known disabilities. Thus, if an employee denies getting vaccinated due to health issues, the employer must engage in an interactive process with the worker and provide reasonable accommodation, such as working remotely or establish workplace safeguards to allow the worker to perform his/her job duties without endangering the employee or others.
Employers must provide reasonable accommodation to religious employees – Employers are also required under the FEHA to reasonably accommodate employees with known sincerely-held religious beliefs/practices. Therefore, if a worker opposes to workplace vaccination program because he/she has a sincerely-held religious belief/practice that prevents him/her from being vaccinated, the employer must engage in an interactive process with the employee and provide reasonable accommodation, such as job reassignment or job restructuring. The DFEH states that reasonable accommodations based on religion cannot segregate the worker from other employees or the public and/or impose an undue hardship, such as being excluded from the workplace.
Employers cannot retaliate against workers who engage in a protected activity – If an employee requests to be reasonably accommodated by the employer because of a disability or religious reasons, or any other protected activity (e.g., claiming that the workplace vaccination program is discriminatory), the employer cannot retaliate against the worker. Retaliation is a type of adverse employment action, such as termination, demotion, or any other type of disciplinary action.
If an employee who does not have a disability or sincerely-held religious belief/practice objects to mandatory vaccination, no reasonable accommodation is required – In addition, employers can enforce reasonable disciplinary actions if an employee objects to getting vaccinated for reasons unrelated to disability or religion.
Employers may request medical information from employees based on the mandatory vaccination program – Not only may employers ask workers who enter the workplace if he/she is experiencing COVID-19 symptoms, but they may also ask employees certain questions – including medical information about a disability – so long as the questions relate to the job and business operations and the information remain confidential.
Employers may require proof of vaccination if the mandatory vaccination program is administered by a third party – The DFEH states that asking employees for proof of mandatory vaccination is not a disability- or religious-related inquiry, or even a medical examination. Employers must instruct workers to omit disability-related medical information from such proof.
If an employer wishes to administer a mandatory vaccination program, whether through a third party or by themselves, it is wise to consult with an experienced employment law attorney to comply with FEHA regulations, discuss options for reasonable accommodations, and determine what medical information they can obtain from employees.
For more information about the DFEH guidelines, contact Polaris Law Group today at (888) 796-4010. Serving clients dealing with employment matters in California for more than two decades.