On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) released new COVID-19 related guidance. For the first time, the DFEH addressed the issue of employer mandated vaccinations. This is now the second public agency to release guidance on the issue, following guidance released by the Equal Employment Opportunity Commission (“EEOC”) in December. Like the EEOC, the DFEH guidance opines that employers are permitted to require vaccinations as long as the mandate does not discriminate on the basis of a protected characteristic, such as disability or religious-creed.
Regarding non-vaccination COVID-19 issues, the DFEH guidance remains consistent with its past publications. The key points are provided below:
- Employers are permitted to ask an employee if he or she is experiencing COVID-19 symptoms, but must keep any documentation confidential and separate from the employee’s personnel file.
- Employers may ask an employee why he or she has been absent from work. If the employee discloses an illness or medically-related reason for absence, then the employer must maintain the information as a confidential medical record.
COVID-19 will qualify as a "serious health condition" under the updated California Family Rights Act (which has been expanded to employers with just 5 or more employees) if it results in either inpatient care, continuing treatment or supervision by a healthcare provider, or leads to a condition such as pneumonia.
The legally mandated "reasonable accommodation" process applies to employees with a COVID-19 related disability.
- Employers should not impose an across-the-board accommodation on all employees with COVID-19 related disabilities; rather, an individualized assessment of the situation must be made. DFEH recommends that employers should consider telework and leave as among the potential reasonable accommodations.
- Employees who are at increased risk for severe illness from COVID-19 are only entitled to a reasonable accommodation if the condition which causes the increased risk qualifies as a disability (e.g., age does not qualify as a disability)
Vaccinations. The DFEH guidance provides that an employer may require employees to receive an FDA-approved COVID-19 vaccination as a condition to returning to the workplace. However, DFEH cautions that when doing so, an employer may not (i) discriminate against or harass employees or job applicants on the basis of a protected characteristic; (ii) provides reasonable accommodations for employees who refuse the vaccine on the basis of a disability or sincerely held religious belief; and (iii) does not retaliate against an employee or job applicant for requesting an accommodation. Importantly, the DFEH does not provide an opinion on whether a vaccination mandate is discriminatory on its face.
Reasonable Accommodation for a Disability. If an employer requires vaccination and an employee objects on the basis of disability, the employer must engage in the interactive process with, and reasonably accommodate, the employee with a disability-related reason for not being vaccinated. As possible accommodations, DFEH mentions telework and/or reasonable procedures and safeguards at the workplace that would enable the employee to work without endangering others. DFEH also states that employers may exclude an employee from the workplace if the employee cannot perform the essential duties of the job in a manner that would not endanger the health and safety of others, even with reasonable accommodations. To make this assessment, the employer must carefully evaluate the specific features of the workplace and come up with reasons why an un-vaccinated employee could not be accommodated.
Reasonable Accommodation for Religious Belief. Like employees with a disability based objection, employers must reasonably accommodate employees who object on the basis of a sincerely-held religious belief or practice and may not retaliate against such employees. The DFEH mentions job restructuring, job reassignment, and modification of work practices as possible accommodations. Unless specifically requested by the employee, an accommodation related to religious creed is not considered reasonable if it results in the segregation of the employee from co-workers or the public.
Employees Who Object for a Reason Unrelated to Disability or Religious Belief. Employers are only required to provide a reasonable accommodation to employees who object based on disability or religious belief. For example, an employee who objects because he or she does not trust the safety of the vaccine is not entitled to a reasonable accommodation.
Disciplining Employees Who Resist or Question a Vaccine Mandate. Employers considering a mandatory vaccination policy should expect to encounter some amount of vaccine hesitancy. DFEH recognizes that employers are permitted to enforce reasonable disciplinary policies as long as they do not discipline or retaliate against employees for engaging in legally protected activities. For example, an employer may not discipline an employee merely for asserting that a vaccination policy discriminates on the basis of a protected characteristic because the job bias law permits employees to raise discrimination issues in the workplace. Furthermore, since the National Labor Relations Act protects employees who act in concert with others ("concerted activity") for their mutual aid and protection, employers may not discriminate against employees for engaging in such behavior. Employers must carefully consider the implications of disciplining employees for objecting to a vaccine policy.
On-Site Vaccine Programs. Employers who wish to conduct on-site vaccinations will need to jump over additional legal hurdles when doing so. That is because the pre-screening medical questionnaire is likely to elicit information about a disability. DFEH considers such questions to be impermissible disability related inquiries. Thus, if an employer administers a vaccination program itself, it must demonstrate that the questionnaire is “job-related and consistent with business necessity.” However, no such requirement exists if an employer only requires proof of vaccination administered by a third party. In that case, an employer should instruct employees or applicants to omit any disability-related medical information from the proof of vaccination and any records of vaccination must be maintained as confidential medical records.
We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at www.brgslaw.com
Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP