California’s Department of Fair Employment and Housing (DFEH) has updated its COVID-19 vaccination guidance, replacing its prior guidance issued July 24, 2020.
The DFEH’s updated guidance, available here, permits employers to require employees to receive a vaccine approved by the Food and Drug Administration (FDA), subject to certain exceptions and requirements.
Specifically, in instituting such a mandatory policy, an employer’s policies or practices cannot discriminate or harass employees or applicants based on a characteristic protected by the Fair Employment and Housing Act, such as a disability or religious belief. Further, an employer must reasonably accommodate disabilities and sincerely held religious beliefs, and engage in an interactive process with the employee for that purpose. An employer need not provide an accommodation that would impose undue hardship, or where the employee cannot perform the essential duties of his or her job even with reasonable accommodations, or in situations where the employee cannot perform the essential duties without endangering co-workers or others, even with a reasonable accommodation.
The DFEH guidance provides examples of accommodations for a disability-based objection, including telecommuting and on-site safeguards to protect both the employee and other employees. For a religious objection, the guidance indicates that a reasonable accommodation must eliminate the conflict between the employee’s sincerely held religious belief and practices (also known as religious creed) and the vaccine. Examples provided include job restructuring, job reassignment or work practices modifications. Significantly, unless this is requested by the employee, an accommodation to address a religious belief or practice will not be deemed reasonable if it results in the employee being segregated from other employees or the public. However, as with disability-based accommodations, if the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace.
An employer may not retaliate against an employee who requested an accommodation based on his/her disability or sincerely held religious belief. Further, employers must protect employees from retaliation for engaging in protected activity, such as alleging that the employer’s vaccination policy intentionally discriminates on the basis of race, national origin or another protected characteristic, or has a disparate impact on a protected group.
An employer who administers a COVID-19 vaccination program may ask employees questions related to COVID-19 that are intended to elicit information about a disability if the inquiry is job-related and consistent with business necessity. Further, an employer requiring an employee to receive a COVID-19 vaccination from a third party may require proof of vaccination.
Any record regarding the vaccination of an employee or applicant must be maintained as a confidential medical record.
The author would like to gratefully acknowledge the assistance of Joanne Warriner.