As employers anticipate returning to work in light of increased availability of vaccines, some have considered requiring employees to get a COVID-19 vaccination to return to the workplace. On March 4, 2021, California’s Department of Fair Employment and Housing (DFEH) updated its DFEH Employment Information on COVID-19 to address whether employers may mandate vaccines under the California Fair Employment and Housing Act (FEHA). The FEHA prohibits discrimination against employees based on protected characteristics, including disability and religious beliefs.
Under the recent update, the DFEH states that employers may require employees to receive an FDA-approved vaccination against COVID-19 as long as the employer 1) provides reasonable accommodation related to disability or sincerely held religious beliefs, and 2) does not retaliate against employees for requesting such an accommodation.
It is important to note that the DFEH guidance only applies to “FDA-approved” vaccinations. Currently, the vaccines available are not FDA-approved, but have only received emergency use authorization (EUA). Although this distinction is not explicitly addressed in the guidance, employers should be cautious in mandating EUA-vaccines until additional clarifying guidance is issued, particularly considering there has already been at least one lawsuit filed challenging a mandatory-EUA vaccination policy in New Mexico.
If an employer decides to mandate vaccines in the workplace, the employer must reasonably accommodate employees with known disabilities or sincerely held religious beliefs. The FEHA requires that an employer engage in an interactive process with any employee who objects on this basis in order to identify options for reasonable accommodation. Employers may not retaliate against any employee who requests accommodation based on disability or religious belief. An employer may only exclude such an employee from the workplace if the accommodation imposes an undue hardship, or if the employee is unable to perform or is a danger to other employees even with accommodations in place.
According to the DFEH guidance, an employer is not required to provide reasonable accommodation if the employee objects to vaccination for another reason besides disability or religious belief. An employer may also discipline employees who refuse to get the vaccine for a reason besides disability or religion. However, an employer may not do so if the employee is engaging in protected activity under FEHA. For example, an employer may not retaliate against an employee who refuses to comply with the mandatory vaccination policy based on their allegations that the policy intentionally discriminates on the basis of race in violation of California law.
However, it is important to note that the DFEH guidance is focused on rights arising out of FEHA (i.e. claims of discrimination, harassment, and retaliation based on protected characteristics and activities set forth under FEHA). The guidance would not be applicable to potential retaliation claims arising out of different statutes or laws, including, by way of example, OSHA or the California Labor Code.
Many employers plan to require proof of vaccination, especially if the employees must get the vaccine off-site. Similar to the Equal Employment Opportunity Commission guidance issued on December 16, 2020, which we previously discussed, the DFEH guidance states that employers may require that employees provide proof of vaccination. However, the DFEH recommends that employers instruct employees to omit any medical information that may appear on such documentation. In any event, if an employer retains any records of employee vaccination, the employer must maintain the records as confidential medical records.
For assistance in forming policies related to vaccination, or any other concerns regarding COVID-19 policies and procedures in the workplace, please contact the author of this article or the Hogan Lovells lawyer with whom you regularly work.
Heather McAdams, a Law Clerk in the New York office, contributed to this blog post.