On March 4, 2021, the California Department of Fair Employment and Housing (DFEH) updated its “DFEH Employment Information on COVID-19” to include answers to some of the frequently asked questions (FAQs) about vaccinations.
The DFEH is responsible for enforcing the California Fair Employment and Housing Act (FEHA), which prohibits California employers from discriminating against employees based on certain protected characteristics, including disability. The FEHA also mandates that employers engage in the interactive process with employees and provide reasonable accommodation to employees with statutory disabilities so that they can perform the essential functions of their job. Many of the DFEH’s FAQ responses are consistent with the U.S. Equal Employment Opportunity Commission’s responses to the same or similar questions. Below are some key provisions of the revised FAQs.
Employers may mandate that employees be vaccinated.
The DFEH confirms that employers can mandate that employees receive an FDA-approved vaccination without violating the FEHA so long as the employer reasonably accommodates employees’ disabilities and sincerely-held religious beliefs or practices.
Employers must engage in the interactive process and provide reasonable accommodations for both disabilities and sincerely-held religious beliefs.
Similarly, the DFEH confirms that employers must engage in the interactive process with employees who have a disability-related reason or sincerely held religious belief not to be vaccinated. The FAQs also emphasize that the employer must determine the availability of a reasonable accommodation on a case-by-case basis. In addition to working from home as a reasonable accommodation for disability-related reasons, the DFEH suggests that employers and employees consider reasonable safeguards and procedures that employers might be able to put into place so that employees could work at their worksites without endangering themselves or other employees and third parties.
Employers need not reasonably accommodate employees who object for reasons not related to disability or religion.
The FAQs state that the FEHA does not require employers to reasonably accommodate employees who refuse to be vaccinated for reasons that do not relate to a known disability or sincerely-held religious belief or practice. For example, according to the FAQs, the FEHA does not require that an employer reasonably accommodate an employee who objects to being vaccinated because the employee does not “trust that the vaccine is safe.”
Employers may discipline employees who refuse to be vaccinated.
The FAQs also provide that employers may discipline employees who refuse to be vaccinated, so long as the discipline is not retaliatory. For example, employers may not discipline an employee for requesting a reasonable accommodation related to his or her known disability or sincerely-held religious belief or practice. Likewise, the FAQs reiterate that employers may not retaliate against an employee who claims that “the employer’s vaccination policy intentionally discriminates on the basis of race, national origin, or another protected characteristic, or has a disparate impact on a protected group.”
If an employer administers its own vaccination program, it may ask only questions that are “job-related and consistent with business necessity.”
The DFEH recognizes that employers that administer their own vaccination programs may ask employees “questions that could elicit information about a disability.” If the employer asks such questions, those questions must be “job-related and consistent with business necessity.” For example, if an employee objects to being vaccinated, the employer could ask whether the employee’s decision is based on a need for accommodation related to a disability or for some other reason.
Employers may require proof of vaccination.
The DFEH also assures employers that they may require employees to provide proof of vaccination. The employer, however, must maintain that information as a confidential medical record.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.