The California Department of Fair Employment and Housing (“DFEH”) has updated its COVID-19 guidance (effective 3/4/21, replacing its previous version from 7/24/20).
Use Caution If You Are Considering Making Vaccines Mandatory
The DFEH now says employers may require employees to receive a Food and Drug Administration (FDA)-approved vaccination. We suspect that many employers will be misled by this guidance because many COVID vaccines are available and being administered to many people. The new guidance relates only to FDA-approved vaccines. Currently available COVID vaccines are not FDA-approved; they have only received emergency use authorization (“EUA”) at this time.
As explained in an FDA update on COVID preventions and treatments, EUA and FDA approval are not the same thing. “The EUA process is different than an FDA approval or clearance. Under an EUA, in an emergency, the FDA makes a product available to the public based on the best available evidence, without waiting for all the evidence that would be needed for FDA approval or clearance.” Furthermore, to the extent practicable, the FDA must ensure that recipients of the vaccine under an EUA are informed of a variety of things, including that consumers have “the option to accept or refuse the vaccine, and of any available alternatives to the product.”
Absent additional clarification and/or FDA approval, we do not construe this new DFEH guidance as permission to implement a mandatory COVID vaccine program.
Comply With the FEHA
Even when offering a voluntary vaccination program or deciding to require employee vaccinations that are FDA-approved, employers must still comply with the Fair Employment and Housing Act (“FEHA”). This means the employer must:
- Not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
- Provide reasonable accommodations related to disability or sincerely held religious beliefs or practices;
- Employers must engage in the interactive process with and reasonably accommodate these objections. Accommodations may include allowing the employee to continue to work from home, altering/staggering shifts, providing extra air purification and other increased safety measures, and, in some instances, job restructuring, although employers don’t have to provide accommodations that result in “undue hardship.”; and
- Not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).
Protect Employees’ Medical Information
The guidance makes clear that employers who are administering a voluntary COVID-19 vaccination program themselves may only ask employees for medical information if the questions are “job-related and consistent with business necessity.”
Employers may ask employees if they have been vaccinated or not in order to assess safety and risk factors in the workplace. However, employers should make clear that employees will not be discriminated against based on religion, disability, or medical condition.
Similarly, an employer can require an employee or job applicant who represents that they have been vaccinated by a third-party administrator to provide proof. However, the request must not be related to disability, religious creed, or a medical examination. Employers should instruct employees and applicants to omit any medical information regarding disabilities or other protected information from any proof of vaccination.