Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy 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’s guidance mirrors the Equal Employment Opportunity Commission’s guidance on mandatory vaccination policies and the protections of the Americans with Disabilities Act and other federal employment laws.
Prohibiting discrimination and harassment
California employers mandating vaccinations for their workforce must ensure their vaccination policy does not discriminate against or harass employees or job applicants based on a protected characteristic. Protected characteristics include such characteristics as disability, perceived disability, or religion. To prevent a mandatory vaccination policy from being discriminatory, employers must be prepared to reasonably accommodate employees with a known disability or sincerely-held religious belief.
Providing reasonable accommodations
Employers implementing a mandatory COVID-19 vaccination policy must engage in an interactive process with any employee who seeks a reasonable accommodation from the policy. The DFEH stated that the FEHA requires employers to reasonably accommodate employees with known disabilities or a sincerely-held religious belief that would prevent them from being vaccinated. Therefore, an employee who objects to vaccination on either ground must be reasonably accommodated unless the accommodation would impose an undue hardship on the employer. Whether a reasonable accommodation exists will be a fact and situation-specific inquiry. Potential accommodation considerations may include, but are not limited to, whether the employee can work from home or whether reasonable procedures and safeguards could be put in place at the worksite to enable the unvaccinated employee to work without endangering themselves or others. Importantly, the DFEH has advised that employers are not legally required to reasonably accommodate employees simply because they do not trust that the vaccine is safe.