On March 4, 2021, California’s Department of Fair Employment and Housing (“DFEH”) updated its COVID-19 guidance essentially giving California employers the go ahead to proceed with mandatory vaccination programs. Specifically, the DFEH guidelines state that, “[u]nder the [Fair Employment and Housing Act], an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or 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 a reasonable accommodation).”
Consistent with the EEOC’s guidance, the updated guidelines carve out exceptions for employees who object to the vaccine because of a disability or sincerely held religious belief or practice. Employers should engage in an interactive process with the employee in both situations to make a fact-specific determination on whether reasonable accommodations exist. Among the accommodations that an employer and employee may want to consider are 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 to employee to work without endangering the employee or others.
While cautioning employers against retaliation, the guidelines specifically allow employers to impose reasonable discipline in situations where employees refuse to participate in a mandatory vaccination program. Moreover, the guideline states that employers do not have to reasonably accommodate employees who do not “trust that the vaccine is safe,” or they do not believe in vaccines based on some personal philosophy, or they have similar objections unrelated to a disability or sincerely held religious belief. However, employers must safeguard employees from retaliation for engaging in any protected activity related to a vaccination policy or practice, such as complaining that an employer’s mandatory vaccine policy is discriminatory or has a disparate impact on a protected group.
Lastly, the DFEH specifies that asking employees who obtain their own vaccination to provide proof of vaccination is not a disability-related or religious creed-related inquiry and is not a medical examination. However, the vaccination record should be redacted to omit any medical information and must be maintained in as a confidential medical record. For instances where the employer administers the COVID-19 vaccination, the DFEH allows the employer to ask for medical information, such as pre-vaccination screening questionnaire, as long as the inquiry is “job-related and consistent with business necessity.”
The DFEH guidelines can be found here:
