On March 4, 2021, the California Division of Honest Employment and Housing (“DFEH”) up to date its COVID-19 related guidance.  Along with addressing whether or not an employer could ask about signs, take staff’ temperatures, and require the usage of private protecting gear amongst different issues, the DFEH addresses a query that has been high of thoughts for a lot of California employers:

Can employers require their staff to be vaccinated?

The brief reply is sure, as long as the employer adheres to the necessities of the Honest Employment and Housing Act (“FEHA”).

The DFEH explains the best way to adjust to the FEHA within the occasion an employer mandates an FDA-approved COVID-19 vaccine.

(1) Necessary Vaccination Insurance policies and Practices Should Not Discriminate In opposition to or Harass Staff Primarily based on a Protected Attribute

The FEHA gives that employers can’t discriminate in opposition to or harass staff primarily based on protected traits, together with however not restricted to, faith and incapacity.  Within the occasion employers implement a compulsory vaccination coverage or apply, such coverage or apply can’t function to discriminate in opposition to or harass staff primarily based on protected traits.

(2) Employers Should Moderately Accommodate Staff With Disabilities

Employers are required below the FEHA to moderately accommodate staff’ identified disabilities.  Subsequently, if an worker objects to the vaccination on the premise that she or he has a incapacity that stops them from being vaccinated, the employer is required to have interaction in an interactive course of with the worker and fairly accommodate that worker.  Affordable lodging could embody the worker working from dwelling, or the employer implementing safeguards on the worksite to allow the worker to work with out endangering the worker or others.

If the lodging imposes an undue hardship, if the worker can’t carry out his or her important duties even with the cheap lodging, or if the worker can’t carry out his or her important duties with out endangering the well being or security of the worker or others even with the cheap lodging, then the employer could exclude the worker from the worksite.

(3) Employers Should Moderately Accommodate Staff With Sincerely-Held Spiritual Beliefs or Practices

The FEHA additionally requires that employers moderately accommodate staff’ identified sincerely-held spiritual beliefs and practices.  Subsequently, if an worker objects to the vaccination on the premise that she or he has a sincerely-held spiritual perception or apply that stops them from being vaccinated, the employer is required to have interaction in an interactive course of with the worker and fairly accommodate that worker.  Affordable lodging within the spiritual context could get rid of the battle between the spiritual perception or apply and the vaccination requirement.  The DFEH signifies that these cheap lodging may embody job restructuring or job reassignment.

The DFEH additionally notes that, except particularly requested by the worker, lodging associated to sincerely-held spiritual beliefs or practices aren’t thought of “cheap” in the event that they segregate the worker from different staff or the general public.  And, much like responding to a incapacity, if the lodging imposes an undue hardship on the employer, the employer could exclude the worker from the worksite.

(4) Employers Should Not Retaliate In opposition to Staff for Participating in Protected Exercise

If an worker requests an affordable lodging as a result of a incapacity or sincerely-held spiritual perception or apply, the employer can’t retaliate in opposition to them.  Equally, if an worker engages in different protected exercise, for instance, if the worker alleges that the employer’s necessary vaccination coverage is discriminatory, the employer can’t retaliate in opposition to them.  Retaliation is a type of antagonistic employment motion, and should embody self-discipline.

(5) If an Worker Resists Necessary Vaccination Absent a Incapacity or Sincerely-Held Spiritual Perception or Apply, No Affordable Lodging Is Needed

An employer is just not required to moderately accommodate an worker who merely doesn’t need to obtain an FDA-approved vaccination that’s mandated by an employer, absent a incapacity purpose or sincerely-held spiritual perception or apply purpose.

The DFEH additionally notes that employers are permitted to implement cheap disciplinary insurance policies and practices if staff resist the vaccination for causes unrelated to incapacity and sincerely-held spiritual beliefs and practices; nevertheless, as famous above, an employer can’t self-discipline an worker for participating in protected exercise.

(6) The Kind of Medical Info That Can Be Elicited From Staff Will Depend upon Whether or not the Employer Is Administering the Necessary Vaccination   Program

The DFEH signifies that employers could usually ask an worker getting into the worksite whether or not she or he is experiencing COVID-19 signs.  Along with this, if the employer is administering a compulsory vaccination program, the employer could ask an worker sure questions, together with by the use of a pre-vaccination screening questionnaire, that would elicit data concerning a incapacity as long as the questions are “job-related” and “in line with enterprise necessity.”

The DFEH additionally notes that any retained data of vaccination have to be maintained as confidential medical data by the employer.

(7) Employers Might Require “Proof” of Vaccination if a Third Social gathering Is Administering the Necessary Vaccination Program

In line with the DFEH, asking staff for proof of the necessary vaccination is just not a disability-related inquiry, a spiritual perception or practice-related inquiry, or a medical examination.  That stated, as a result of the proof of vaccination may embody disability-related medical data, employers ought to instruct staff to omit that data.  And once more, any report of vaccination have to be maintained as a confidential medical report by the employer.

Employer Takeaways

  • The DFEH signifies that it isn’t commenting on whether or not, or to what extent, employers ought to mandate that staff get vaccinated. Its steerage simply addresses the best way to adjust to the FEHA within the occasion employers mandate vaccination.
  • Employers ought to seek the advice of with authorized counsel within the occasion they want to put a compulsory vaccination coverage or apply in place.
  • Whether or not an affordable lodging exists for workers with disabilities and/or sincerely-held spiritual beliefs or practices is a extremely fact-specific inquiry that ought to be mentioned with authorized counsel.
  • Remember the fact that “undue hardship” is troublesome to reveal; subsequently, employers ought to seek the advice of with authorized counsel within the occasion they imagine there may be undue hardship and want to deny an affordable lodging.
  • If employers need to administer the necessary vaccination program themselves, they need to seek the advice of with authorized counsel to debate, amongst different issues, what medical data can safely be obtained from staff.

The authorized panorama continues to evolve rapidly and there’s a lack of clear-cut authority or vivid line guidelines on implementation.  This text is just not meant to be an unequivocal, one-size matches all steerage, however as an alternative represents our interpretation of the place relevant legislation presently and usually stands.  This text doesn’t tackle the potential impacts of the quite a few different native, state and federal orders which have been issued in response to the COVID-19 pandemic, together with, with out limitation, potential legal responsibility ought to an worker turn into in poor health, necessities concerning household go away, sick pay and different points.

Sheppard Mullin is dedicated to offering employers with up to date data concerning COVID-19 and its impression on the office.  Keep knowledgeable on authorized implications with Sheppard Mullin’s Coronavirus Insights Portal which aggregates the agency’s numerous COVID-19 weblog posts on a broad vary of matters.