The California Department of Fair Employment and Housing (DFEH) has updated its COVID-19 FAQs and has issued its long-awaited guidance regarding employers mandating COVID-19 vaccines.
As a preliminary matter, the DFEH explained that it is not providing guidance on whether or to what extent an employer should mandate vaccination within its workforce. Rather, the DFEH stated that its guidance/FAQs are to address how employers comply with the Fair Employment and Housing Act (FEHA) if employers require employees to be vaccinated against COVID-19 with an FDA-approved vaccine.
Below is a summary of the DFEH’s FAQs.
- Employers may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as employers:
- Do not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
- Provide reasonable accommodations related to disabilities or sincerely held religious beliefs or practices; and
- Do not retaliate against anyone for engaging in a protected activity (such as requesting a reasonable accommodation).
- Employers must reasonably accommodate employees with:
- Known disabilities, or
- Sincerely held religious beliefs or practices.
- If an employee objects to being vaccinated on the basis of a disability, the employer must engage in an interactive process with the employee and must reasonably accommodate the employee unless the employer can show that:
- The requested accommodation imposes an undue hardship;
- The employee is unable to perform the employee’s essential duties even with reasonable accommodations; or
- The employee cannot perform those duties in a manner that would not endanger the health or safety of the employee or of others even with reasonable accommodations.
If an employer can show any of the foregoing, the employer may exclude the employee from the workplace.
Under the FEHA, reasonable accommodation and undue hardship considerations require a fact-intensive analysis.
- Although the DFEH did not provide numerous examples of what would constitute accommodations, the DFEH did provide a couple of useful examples for employers and employees to consider:
- Whether the employee is able to work from home; or
- Whether reasonable procedures and safeguards could be put in place at the worksite that would enable the employee to work without endangering the employee or others.
- The analysis for an employee who objects to being vaccinated on the grounds of a sincerely held religious belief and practices (a.k.a. religious creed) is similar to the discussion regarding disability. Reasonable accommodations may include the following:
- Job restructuring;
- Job reassignment; or
- Modification of work practices.
The DFEH also explained that unless specifically requested by the employee, an accommodation is not considered reasonable if the employee ends up being segregated from other employees or from the public.
As with the analysis based on objections due to a disability, the employer may exclude the employee from the workplace if the employer shows that an accommodation imposes an undue hardship.
- The DFEH also explained,
- Employers are prohibited from retaliating against anyone for engaging in a protected activity.
- If employees do not have a disability or sincerely held religious reasons, employers do not have to reasonably accommodate employees. For instance, if employees object to being vaccinated because they do not trust the FDA-approved vaccine or employees do not believe that the vaccine is safe, employers do not have a duty to accommodate.
- Employers are permitted to enforce reasonable disciplinary policies and practices, but the FEHA prohibits employers from retaliating against any employee for engaging in a protected activity. The DFEH provided the following example: employers may not retaliate against employees who allege 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.
- If employers administer COVID-19 vaccination programs, the employers may seek to have employees answer certain questions that could elicit information about a disability, including questions on a prevaccination screening questionnaire, so long as the inquiry is “job-related and consistent with business necessity.”
- Employers may require employees or applicants to provide proof of vaccination.
As with all things COVID-19, the landscape is dynamic. Employers considering mandatory COVID-19 vaccination programs should consult with their Faegre Drinker counsel to ensure their vaccination policies are compliant with applicable local, state and federal guidance relating to the COVID-19 vaccination, including the fact-intensive analysis required for reasonable accommodations and undue hardship. Faegre Drinker will continue to monitor all developments and provide resources for employers.