Over a year has elapsed since California Governor Gavin Newsom issued the state’s initial stay-at-home order to address the COVID-19 pandemic. As of April 12, 2021, more than 22 million doses of coronavirus vaccinations have been administered in the state, with 37.7% of Californians having received one. In addition, Governor Newsom recently announced that California would make coronavirus vaccinations available to all residents 16 and older by April 15, 2021. As COVID-19 vaccinations are made more widely available, employers and employees alike are wondering whether employers can require employees to be vaccinated. DFEH’s recent publication offers important guidance to employers as they wrestle with the question of whether to implement mandatory COVID-19 vaccination requirements for employees.
According to DFEH’s recent publication, employers may require employees to receive an FDA-approved COVID-19 vaccination without violating the Fair Employment and Housing Act (FEHA) so long as the employer does not (1) discriminate against or harass employees or job applicants on the basis of a protected characteristic, (2) provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and (3) does not retaliate against those requesting such an accommodation. Late last year, the Equal Employment Opportunity Commission (EEOC), which enforces federal workplace anti-discrimination laws, issued similar guidance suggesting that an employer may generally require COVID-19 vaccination as a condition of employment if the employer provides disability and religious exemptions.
Employers should note that DFEH’s guidance only applies to “FDA-approved” vaccinations. At this time, the available COVID-19 vaccines are not FDA-approved. Instead, the FDA has granted only emergency use authorization (EUA) for the Pfizer-BioNTech, Moderna, and Johnson & Johnson vaccines. DFEH’s recent guidance does not expressly address the distinction between an FDA-approved vaccine and EUA-vaccines. Until additional clarifying guidance is issued, employers should exercise caution in requiring EUA-vaccines, especially given that there have already been at least two lawsuits filed, one in New Mexico and one in California, challenging EUA-vaccination policies.
Based on DFEH and EEOC guidance, employers that decide to establish a mandatory COVID-19 vaccination policy must be prepared to provide reasonable accommodations related to an employee’s disability or religious belief. According to DFEH, however, an employee’s mere distrust, suspicion, or fear of the COVID-19 vaccine is insufficient to trigger an employer’s legal obligation to provide reasonable accommodations, and an employer may discipline employees who refuse to get vaccinated for a reason besides disability or religion. Of course, if an employee is engaging in protected activity under FEHA, the employee may not be disciplined. For example, an employer may not discipline an employee who refuses to comply with a mandatory vaccination policy because the employee alleges that the policy intentionally discriminates on the basis of race or other protected characteristic under California law.
If an employee objects to being vaccinated on disability or religious grounds, the employer must engage in the interactive process with the employee to determine whether the employee can be reasonably accommodated. Reasonable accommodations for an employee objecting to the vaccination on religious grounds could include a remote work arrangement, secluded office space, or increased access to personal protective equipment (PPE). Whether a reasonable accommodation exists is a very fact-specific inquiry and should be addressed on a case-by-case basis.
An employer need not accommodate an employee and may exclude the employee from the workplace only if the employer can show that:
- The accommodation would impose an undue hardship,
- The employee cannot perform his or her essential job duties even with reasonable accommodations, or
- The employee cannot perform his or her job without endangering the employee’s own health or safety or that of other employees even with accommodations in place.
TO ENGAGE OR NOT ENGAGE?
The following hypotheticals are intended to help employers understand when they may be required to engage in the interactive process to assess whether an employee can be accommodated:
- An employee read negative reviews about the COVID-19 vaccine and is generally fearful of the potential side effects of the COVID-19 vaccine. Does this trigger an employer’s duty to engage in the interactive process to explore potential reasonable accommodations? No.
- An employee has a sincerely-held religious belief that use of vaccinations is immoral because it modifies one’s natural state. Does this trigger an employer’s duty to engage in the interactive process to explore potential reasonable accommodations? Yes.
- An employee is expected to have a severe allergic reaction to an ingredient in the COVID-19 vaccine. Does this trigger an employer’s duty to engage in the interactive process to explore potential reasonable accommodations? Maybe, as the allergy may be an underlying condition that qualifies as a disability, i.e., a physical condition that limits a major life activity.
- An employee sincerely believes that COVID-19 is a hoax and that the vaccine will not work to prevent illness. Does this trigger an employer’s duty to engage in the interactive process to explore potential reasonable accommodations? No, because the employee’s refusal to get vaccinated is not related to a physical or mental disability or a sincerely-held religious belief or practice.
EMPLOYER ADMINISTERED VACCINATION PROGRAMS
According to DFEH, if an employer opts to administer a vaccination program, the employer may ask employees medical-related questions that could prompt disclosure of information about a disability so long as the inquiry is job-related and consistent with business necessity. Of course, employers are required to maintain any information obtained from employees in the course of administering such a program as a confidential medical record.
PROOF OF VACCINATION
An employer may require proof of vaccination. DFEH has advised that merely asking employees for proof of vaccination does not constitute a disability-related inquiry, religious creed-related inquiry, or a medical examination. DFEH further suggests that employers may want to instruct employees to remove or withhold information related to disability-related medical information when responding to inquiries relating to vaccination status to the extent possible. Any proof of vaccination records must be treated as confidential medical records as well.
COVID-19 VACCINATION POLICIES AND THE DUTY TO NEGOTIATE
As public employers assess whether to impose mandatory vaccination requirements, public employers with unionized workforces must also be aware that such policies will have collective bargaining implications. Under California laws applicable to public sector collective bargaining, such as the Meyers Milias-Brown Act and the Educational Employment Relations Act, employers have a duty to meet and confer in good faith over subjects within the scope of representation, which include wages, hours, and other the terms and conditions of employment.
The decision to adopt a COVID-19 vaccination requirement would likely be considered a mandatory subject of bargaining as it directly affects employer health, safety, and working conditions, unless an emergency exception or management rights clause could be invoked. The California Public Employment Relations Board (PERB), however, has not yet directly addressed whether COVID-19 qualifies as an emergency situation that would allow public employers to take immediate action without negotiating. Even if the underlying decision to adopt a mandatory vaccination policy could be deemed non-negotiable, the effects of that decision would be subject to negotiation. To mitigate legal risk associated with collective bargaining obligations, public agencies seeking to impose a vaccine mandate on unionized employees should notify their respective unions and engage in the meet and confer before implementing a mandatory vaccine policy.
Whether to require employees to be vaccinated against COVID-19 or simply encourage vaccination is a complex question employers must evaluate based on the needs of their specific workplace and industry. Employers considering a mandatory COVID-19 vaccination policy should be aware of the significant legal implications and potential legal risks of such a policy, some of which are discussed above.
Additionally, employers should remember that the recent guidance from DFEH and the EEOC’s is not binding law. How the courts and other federal and state agencies address the issue of mandatory COVID-19 vaccinations in the workplace is not yet known.
OMLO will continue to monitor and provide updates from the DFEH as they become available. If you have any questions regarding workplace policies, please contact your OMLO attorney.