The DFEH guidance expressly provides that employers are not required to accommodate employees who oppose the vaccine for reasons other than disability or sincerely held religious beliefs or practices.
New guidance has arrived from the California Department of Fair Employment and Housing (DFEH) for employers in California. As the U.S. Food and Drug Administration has approved use of three vaccines against COVID-19 infection and a fourth vaccine is undergoing clinical trials in the United States, the new DFEH guidance addresses questions relating to vaccines and the workplace. The guidance is especially timely, with some employees expressing reluctance to receive vaccinations and others hesitant to return to work fearing COVID-19 exposure.
Mandatory Vaccines and Reasonable Accommodations
Following the lead of the U.S. Equal Employment Opportunity Commission’s vaccination guidance for employers issued in December 2020 (see our prior Alert), the DFEH guidance permits employers to require employees to receive an FDA-approved COVID-19 vaccine so long as they provide reasonable accommodations related to disability, do not discriminate against or harass employees and do not retaliate for engaging in protected activity.
The guidance also addresses reasonable accommodation. If an employer requires employees to be vaccinated, but an employee objects to the vaccine based on a disability or known, sincerely held religious belief or practice, the guidance calls for the employer to engage in an interactive process with and reasonably accommodate the employee, unless such an accommodation would impose an undue hardship. The guidance recognizes that employees who are unable to perform their essential duties even with reasonable accommodations, or those who cannot perform those duties in a manner that would not endanger the health or safety of themselves or others even with reasonable accommodations, may be excluded from the workplace. The DFEH guidance expressly provides that employers are not required to accommodate employees who oppose the vaccine for reasons other than disability or sincerely held religious beliefs or practices.
To ease employer fears of overstepping privacy boundaries, the guidance provides that employers may generally ask their employees to answer questions regarding COVID-19, including inquiries about COVID-19 symptoms upon entering the workplace and whether they have received a COVID-19 vaccination. Further, if an employer administers a vaccination program, the guidance permits questions that could elicit information about a disability—including questions on a pre-vaccination screening questionnaire—so long as the inquiry is “job-related and consistent with business necessity.” The guidance further cautions employers inquiring about COVID-19 to maintain vaccination records as confidential.
Employers May Not Retaliate Against Employees
The guidance serves as a reminder that California anti-discrimination law prohibits retaliation against employees for engaging in protected activity, such as requesting a reasonable accommodation.
What This Means for Employers
With the new guidance, employers can better plan for whether and how to require vaccines for their employees with greater clarity on whether such policies comply with state laws and regulations. Create a plan to check for symptoms upon entering work. Consider asking about vaccinations. Think about creating vaccination programs. But be prepared to respond to employee resistance. Use caution before taking any adverse action against employees who resist. Update policies, train managers and be sure to adhere to the latest government guidance on how to reduce transmission of COVID-19 in the workplace until the pandemic ends.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Lori Ocheltree, Anjuli M. Cargain, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.