On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) updated its COVID-19 related guidance.  In addition to addressing whether an employer may ask about symptoms, take employees’ temperatures, and require the use of personal protective equipment among other things, the DFEH addresses a question that has been top of mind for many California employers:

Can employers require their employees to be vaccinated?

The short answer is yes, so long as the employer adheres to the requirements of the Fair Employment and Housing Act (“FEHA”).

The DFEH explains how to comply with the FEHA in the event an employer mandates an FDA-approved COVID-19 vaccine.

(1) Mandatory Vaccination Policies and Practices Must Not Discriminate Against or Harass Employees Based on a Protected Characteristic

The FEHA provides that employers cannot discriminate against or harass employees based on protected characteristics, including but not limited to, religion and disability.  In the event employers implement a mandatory vaccination policy or practice, such policy or practice cannot operate to discriminate against or harass employees based on protected characteristics.

(2) Employers Must Reasonably Accommodate Employees With Disabilities

Employers are required under the FEHA to reasonably accommodate employees’ known disabilities.  Therefore, if an employee objects to the vaccination on the basis that he or she has a disability that prevents them from being vaccinated, the employer is required to engage in an interactive process with the employee and reasonably accommodate that employee.  Reasonable accommodations may include the employee working from home, or the employer implementing safeguards at the worksite to enable the employee to work without endangering the employee or others.

If the accommodation imposes an undue hardship, if the employee cannot perform his or her essential duties even with the reasonable accommodation, or if the employee cannot perform his or her essential duties without endangering the health or safety of the employee or others even with the reasonable accommodation, then the employer may exclude the employee from the worksite.

(3) Employers Must Reasonably Accommodate Employees With Sincerely-Held Religious Beliefs or Practices

The FEHA also requires that employers reasonably accommodate employees’ known sincerely-held religious beliefs and practices.  Therefore, if an employee objects to the vaccination on the basis that he or she has a sincerely-held religious belief or practice that prevents them from being vaccinated, the employer is required to engage in an interactive process with the employee and reasonably accommodate that employee.  Reasonable accommodations in the religious context may eliminate the conflict between the religious belief or practice and the vaccination requirement.  The DFEH indicates that these reasonable accommodations could include job restructuring or job reassignment.

The DFEH also notes that, unless specifically requested by the employee, accommodations related to sincerely-held religious beliefs or practices are not considered “reasonable” if they segregate the employee from other employees or the public.  And, similar to responding to a disability, if the accommodation imposes an undue hardship on the employer, the employer may exclude the employee from the worksite.

(4) Employers Must Not Retaliate Against Employees for Engaging in Protected Activity

If an employee requests a reasonable accommodation due to a disability or sincerely-held religious belief or practice, the employer cannot retaliate against them.  Similarly, if an employee engages in other protected activity, for example, if the employee alleges that the employer’s mandatory vaccination policy is discriminatory, the employer cannot retaliate against them.  Retaliation is a form of adverse employment action, and may include discipline.

(5) If an Employee Resists Mandatory Vaccination Absent a Disability or Sincerely-Held Religious Belief or Practice, No Reasonable Accommodation Is Necessary

An employer is not required to reasonably accommodate an employee who simply does not want to receive an FDA-approved vaccination that is mandated by an employer, absent a disability reason or sincerely-held religious belief or practice reason.

The DFEH also notes that employers are permitted to enforce reasonable disciplinary policies and practices if employees resist the vaccination for reasons unrelated to disability and sincerely-held religious beliefs and practices; however, as noted above, an employer cannot discipline an employee for engaging in protected activity.

(6) The Type of Medical Information That Can Be Elicited From Employees Will Depend on Whether the Employer Is Administering the Mandatory Vaccination   Program

The DFEH indicates that employers may generally ask an employee entering the worksite whether he or she is experiencing COVID-19 symptoms.  In addition to this, if the employer is administering a mandatory vaccination program, the employer may ask an employee certain questions, including by way of a pre-vaccination screening questionnaire, that could elicit information regarding a disability so long as the questions are “job-related” and “consistent with business necessity.”

The DFEH also notes that any retained records of vaccination must be maintained as confidential medical records by the employer.

(7) Employers May Require “Proof” of Vaccination if a Third Party Is Administering the Mandatory Vaccination Program

According to the DFEH, asking employees for proof of the mandatory vaccination is not a disability-related inquiry, a religious belief or practice-related inquiry, or a medical examination.  That said, because the proof of vaccination could include disability-related medical information, employers should instruct employees to omit that information.  And again, any record of vaccination must be maintained as a confidential medical record by the employer.

Employer Takeaways

• The DFEH indicates that it is not commenting on whether, or to what extent, employers should mandate that employees get vaccinated. Its guidance just addresses how to comply with the FEHA in the event employers mandate vaccination.

• Employers should consult with legal counsel in the event they wish to put a mandatory vaccination policy or practice in place.

• Whether a reasonable accommodation exists for employees with disabilities and/or sincerely-held religious beliefs or practices is a highly fact-specific inquiry that should be discussed with legal counsel.

• Keep in mind that “undue hardship” is difficult to demonstrate; therefore, employers should consult with legal counsel in the event they believe there is undue hardship and wish to deny a reasonable accommodation.

• If employers want to administer the mandatory vaccination program themselves, they should consult with legal counsel to discuss, among other things, what medical information can safely be obtained from employees.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.