A few weeks ago, we blogged that California employers have a strong argument for requiring that employees obtain a COVID-19 vaccination, especially when in-person attendance is necessary for the job. See our previous blog. Last week, California’s Department of Fair Employment and Housing (“DFEH”) released new guidance giving the greenlight to California employers to proceed with mandatory vaccination programs. Specifically, on March 4, 2021, the DFEH updated its (COVID guidance) to express the opinion that “[u]nder the [Fair Employment and Housing Act], an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).”
The DFEH goes on to provide more in-depth treatment of the issues surrounding a mandatory vaccination program. Most notably, an employer is not required to accommodate an employee who refuses vaccination given a general belief that the “vaccine isn’t safe”, without a sincerely-held religious belief or disability. In other words, an employer may restrict the employee’s ability to work, unless one of those two exceptions is in play. The Guidance additionally provides information with respect to the gathering of medical information related to the vaccination, depending on whether the vaccination program is administered by the employer or by a third-party.
Given the DFEH guidance, employers have a strong argument to require vaccination, when job-related and consistent with business necessity and while engaging with employees about the potential conflict between public health and religious practice and/or to reasonably accommodate a disability, but should they?
