With the pandemic relenting and many employers planning the return of their employees to the workplace sooner rather than later, several questions come up with increasing frequency:
1. Can employers require that employees get the vaccine?
According to the Equal Employment Opportunity Commission (EEOC), employers can generally require employees to receive a COVID-19 vaccination. California’s Department of Fair Employment and Housing (DFEH) has provided the following additional confirmation that California employers may lawfully require employees to be vaccinated:
“Under [California’s Fair Employment and Housing Act (“FEHA”)], 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).”
The DFEH further clarified that the COVID-19 vaccines have been authorized by the FDA.
2. What if an employee refuses to get the vaccine?
There are a few exceptions to the general rule that employers can insist their employees are vaccinated before returning to work. Principally, those exceptions are for employees who claim their religion or other belief system is implicated, and the disabled.
Sincerely held religious beliefs are covered under Title VII of the federal Civil Rights Act. The Americans With Disabilities Act (“ADA”) – also federal law – governs medical conditions that make receiving the vaccine dangerous or inappropriate. The California DFEH explains:
“[T]he FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19, as well as prohibits employers from retaliating against anyone for engaging in protected activity.”
For individuals who refuse vaccination due to sincerely held religious beliefs, California employers must provide reasonable accommodations unless doing so would pose “undue hardship” to the employer. What does that mean? Employers should generally not question employees about their religion or probe the sincerity of it. However, employers may question the nature of the employee’s religion if there is an objective basis for doing so.
For employees who cannot get vaccinated due to a disability, employers must take steps to provide reasonable accommodations. These accommodations cannot be unduly burdensome to the employer. Some reasonable accommodations for these employees include allowing them to work remotely or adjusting the employee’s duties to prevent contact with others. An employer may exclude the employee from the workplace if having the unvaccinated person on the premises would post a “direct threat” to the health and safety of other workers.
3. If an employee has received a COVID-19 vaccine, can they refuse employer-mandated COVID-19 tests?
No, even after receiving the vaccine, employers may still mandate that the employee submit to COVID-19 tests.
4. Can employers ask for proof that the employee received the vaccine?
Yes. According to the EEOC and DFEH, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry. Employers should also request that employees provide them no more information than necessary – i.e., a “vaccine card” – as proof of vaccination in order to avoid violations of other disability laws.
5. What type of medical information can an employer elicit?
The EEOC and DFEH have indicated that employers may continue to ask employees entering the worksite whether they are experiencing COVID-19 symptoms, such as fever, chills, cough, and shortness of breath. Employers, however, must ensure that any retained records of employee vaccination status or COVID-19 symptoms are maintained as confidential medical records by the employer.
Key Takeaways for California Employers:
- Employers may lawfully require that employees receive an FDA-approved vaccine before returning to the workplace.
- Employers must ensure that all records related to vaccination and/or COVID-19 symptoms are maintained as confidential medical records.
- Whether a reasonable accommodation exists for employees with disabilities and/or sincerely-held religious beliefs or practices is a highly fact-specific inquiry that should be discussed with legal counsel.
- Keep in mind that “undue hardship” is difficult to demonstrate; therefore, employers should consult with legal counsel in the event they believe there is undue hardship and wish to deny a reasonable accommodation.
Employers should consult with legal counsel in the event they wish to put a mandatory vaccination policy or practice in place. Do not hesitate to contact us with any questions or for assistance.