After patiently waiting for COVID-19 vaccine guidance in California, employers now have some clarification from California’s Department of Fair Employment and Housing (DFEH). As somewhat expected, the DFEH’s guidance issued early this month aligns with the EEOC’s Guidance issued in December 2020.
The firm of Fisher Phillips has commented on the top five takeaways for employers about COVID-19 vaccines according to the DFEH’s recent guidance regarding COVID-19 vaccines:
1. An employer may require employees to receive COVID-19 vaccines.
Consistent with the EEOC’s guidance, the DFEH states that, with certain exceptions, employers may require at-will employees to receive vaccines issued under the FDA’s Emergency Use Authorization (EUA) procedures.
2. If an employer requires vaccination against COVID-19 in its workforce, the employer must reasonably accommodate employees with disabilities or with sincerely held religious beliefs or practices.
Even if an employer may mandate vaccines amongst its employees, it does not mean you have free reign to require the vaccine for all workers. In accordance with the guidance from the EEOC, the DFEH states that if an employee objects to vaccination on the basis of disability or sincerely held religious belief or practice, you must engage in the interactive process to identify options for reasonable accommodations that do not cause undue hardship.
3. An employer is not legally required by the FEHA to reasonably accommodate all employees who refuse the vaccine.
The DFEH says that if an employee does not have a reason based on a disability or sincerely held religious belief for not being inoculated with a vaccine issued under the EUA procedures, you are not legally required to reasonably accommodate the employee.
The DFEH goes on to state that you are permitted to enforce reasonable disciplinary policies and practices if you are not retaliating against any employee for engaging in protected activity, such as opposing practices prohibited by FEHA.
4. If an employer administers a COVID-19 vaccination program, an employer may ask employees for medical information relevant to vaccination.
The DFEH indicates that you may ask for medical information, such as whether an employee is experiencing COVID-19 symptoms or a pre-vaccination screening questionnaire, so long as the inquiry is “job-related and consistent with business necessity.”
5. An employer may require its employees to provide proof of vaccination.
The DFEH specifies that simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, or religious creed-related inquiry, or a medical examination.
Despite the wording of this Guidance, the five takaways require caution and guidance before implementation. The DFEH material should be read in its entirety.