Since our previous article (which can be found here) about the pros and cons of employers implementing a mandatory COVID-19 vaccination policy, the Department of Fair Employment and Housing (DFEH) has issued further guidance pertaining to vaccine policies and COVID-19 related issues in the workplace.
The DFEH advised that an employer may require its employees to receive an FDA-approved vaccination against COVID-19, so long as the employer does not discriminate against or harass employees and job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting accommodations).
It is important to note that the guidance is ambiguous in regards to whether employers can mandate that employees receive the currently available vaccines, as those vaccines have only received Emergency Use Authorization from the FDA and not final approval. However, the language of the DFEH guidance seems to imply that the current vaccines are FDA authorized and recommended and, as such, can be mandated in the workplace.
The DFEH makes it clear that, as we suggested in our previous article, there are requirements to engage in the interactive process and provide reasonable accommodations to employees who refuse the vaccine for a legally protected reason.
Employers must provide reasonable accommodations to an employee who refuses the vaccine due to a qualifying disability and/or sincerely held religious belief, unless the accommodation poses an undue hardship. Furthermore, employers may exclude employees from the workplace for refusing to vaccinate if, without the vaccination, the employee cannot perform his or her duties in a manner that would not endanger either the employee’s health and safety or the health and safety of others, or the employee is unable to perform the essential duties of their job even with reasonable accommodations.
The DFEH further explained that employers are permitted to inquire into COVID-19 related medical information, including whether the employee is experiencing COVID-19 symptoms and whether the employee received the vaccine, without fear of invading the privacy rights of its employees. Employers are permitted to request proof of vaccination, as well.
As always, a company’s duty to engage in the interactive process and provide reasonable accommodation is mandatory under the Fair Employment and Housing Act and the failure to fulfill this obligation can be a violation of the law in itself. It is extremely important to ensure that your company has a policy and practice in place to ensure compliance with these obligations and keeps a proper record.
If your company has any questions about a mandatory vaccine policy and/or its obligations to accommodate employees please contact Nicholas Roxborough at (818) 992-9999, ext. 222, Drew Pomerance at ext. 212, Michael Adreani, at ext. 234, Marina Vitek, at ext. 236, or Trevor Witt, at ext. 224.
