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    On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) issued updated guidance on various COVID-19 related topics in a document titled “DFEH Employment Information on COVID-19 FAQ” (the “Guidance”). In this current Guidance, the DFEH made clear that under the California Fair Employment and Housing Act (“FEHA”), “employers may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic.”

    The Guidance is consistent with the guidance issued by the U.S. Equal Employment Opportunity Commission on December 16, 2020, which Mayer Brown previously discussed here.

    Below, we highlight the critical elements of the DFEH’s Guidance.

    Employers may require employees to be vaccinated against COVID-19

    The Guidance provides that an employer may require employees to receive an “FDA-approved” vaccination against COVID-19 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 or alleging discriminatory practices.

    Note: In explaining the DFEH’s rationale, the Guidance states that “the U.S. Food and Drug Administration (FDA) authorized and recommended three vaccines against COVID-19 infection, and the FDA may approve other vaccines for use in the United States.” The DFEH does not address the fact that the three vaccines referenced have received only “Emergency Use Authorization” (EUA) rather than full FDA approval. Accordingly, it is not clear whether the Guidance permitting employers to implement mandatory vaccination policies applies with respect to the vaccines that have been “authorized and recommended” under an EUA but have not yet received FDA approval. (To date, no COVID-19 vaccine has received FDA approval.)

    Employers must attempt to reasonably accommodate employees with disabilities or sincerely held religious beliefs

    If an employer requires employees to be vaccinated, but an employee objects to the vaccine on the basis of a disability or sincerely held religious belief, the Guidance explains that the employer must engage in an interactive process with and reasonably accommodate the employee, unless such an accommodation would impose an undue hardship. The Guidance recognizes that employees who are unable to perform their essential duties even with reasonable accommodations, or those who cannot perform those duties in a manner that would not endanger the health or safety of themselves or others even with reasonable accommodations, may be excluded from the workplace. The DFEH explains that in assessing whether an undue hardship exists, employers should consider whether the individual can work from home or “whether reasonable procedures and safeguards could be put in place at the worksite that would enable the employee to work without endangering the employee [or applicant] or others.” In addition, the DFEH notes that unless specifically requested by the employee, an accommodation related to religious creed is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public.

    Employers are not required to accommodate philosophical objections

    The Guidance indicates there is no obligation to reasonably accommodate employees who oppose being vaccinated if their objection is not related to a disability or a sincerely held religious belief. Accordingly, employers are not required to reasonably accommodate employees who do not “trust that the vaccine is safe.” Employers may enforce reasonable disciplinary policies with respect to employees who refuse to become vaccinated for a reason other than disability or religion, provided that the employee does not discipline an employee in retaliation for engaging in protected activity, such as requesting a reasonable accommodation or alleging discriminatory practices in connection with the employer’s vaccination policy.

    Employer administered vaccination programs

    The Guidance notes that if an employer administers a COVID-19 vaccination program, it is permitted to ask employees medical-related questions that could prompt disclosure of information about a disability so long as the inquiry is job-related and consistent with a business necessity. Employers are required to maintain any information obtained from employees in the course of administering such a program as a confidential medical record.

    An employer may require its employees to provide proof of vaccination

    The Guidance specifies that asking employees for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry or a medical examination. Employers are encouraged, however, to instruct employees to omit any extraneous medical information to avoid disclosing potential disability-related medical information. However, employee vaccination records must be designated and maintained as a confidential medical record.

    Conclusion

    Employers needing assistance in forming policies related to employee vaccinations, or having any other concerns regarding COVID-19 policies and procedures in the workplace, should consult with their employment counsel.

     

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