Hunton Employment & Labor Perspectives

California employers may mandate employee vaccination under new guidance from the State’s Department of Fair Employment and Housing (DFEH).  With the opening up of California businesses and expansion of vaccine eligibility, a key question facing employers has been whether they can require their employees to get vaccinated.  On March 4, 2021, California’s DFEH finally weighed in with its updated COVID-19 Guidance on several open questions regarding employee vaccination under California law.  The U.S. Equal Employment Opportunity Commission (EEOC) provided similar initial guidance late last year on how mandatory vaccination programs could comply with federal law.

According to the DFEH, an employer may require employees to receive an FDA-approved COVID-19 vaccine so long as the employer complies with the Fair Employment and House Act (FEHA).  This means that, in mandating vaccination, the employer (1) must provide reasonable accommodation on the basis of disability or sincerely-held religious belief or practice, (2) cannot discriminate against or harass employees or job applicants on the basis of their disability or religion, and (3) cannot retaliate against anyone for engaging in a protected activity (such as requesting a reasonable accommodation).

Disability Accommodation

The DFEH guidance explains that, under FEHA, if an employee objects to vaccination on the basis of a disability, the employer must engage in the interactive process with the employee and offer a reasonable accommodation.  However, if providing a reasonable accommodation imposes an undue hardship on the employer, the employer may exclude the employee from the workplace.  Similarly, if the employee cannot perform the essential job duties even with a reasonable accommodation or the employee cannot perform those duties in a manner that would not endanger the health or safety of the employee or other individuals at the worksite, the employer can prevent the employee from coming to work.

Religious Accommodation

The DFEH guidance also provides detail on accommodating sincerely held religious beliefs and practices.  The DFEH guidance suggests that reasonable accommodations may include job restructuring, job reassignment or modification of work practices, but that segregating an individual based on religion is generally not reasonable.  As with disability accommodations, employers may exclude employees from the workplace if they show an accommodation imposes an undue hardship.

Other Objections to the Vaccine

According to the DFEH guidance, an employer is not required to reasonably accommodate an employee just because that employee does not “trust the vaccine is safe.”  If the employee does not have a disability or sincerely held religious reason for not being vaccinated, the employer is not legally required under FEHA to accommodate the employee.  However, employers must be sure to safeguard against retaliation for engaging in a protected activity related to the vaccine program (such as complaining that the program is discriminatory or has a disparate impact on a protected group).  Thus, while the DFEH guidance states that employers are permitted to enforce reasonable disciplinary policies against employees who resist the vaccine mandate (for non-disability or religious reasons), employers should seek legal guidance before considering discipline related to their vaccination policies.

Proof of Vaccination

Under the DFEH guidance, employers can require proof of vaccination from employees or job applications.  Still, employers must be careful regarding the manner in which they request proof and should instruct employees not to include any medical information in their submission of proof.  If an employer self-administers a vaccination program, the employer may ask the employee questions, such as pre-vaccination screening questions, so long as the inquiry is “job-related and consistent with business necessity.”  Any retained records relating to employee vaccination (including proof of vaccination) must be maintained as confidential medical records.

In whole, the DFEH guidance will assist employers in navigating decisions around employee vaccination.  However, the DFEH’s guidance is not binding legal authority and does not touch on all state and federal laws and regulations implicated by COVID-19 and employee vaccinations (including OSHA -- follow Cal/OSHA COVID-19 developments here).   Thus, employers considering a mandatory vaccination policy should consult with counsel to best ensure compliance under applicable law.