The California Department of Fair Employment and Housing (DFEH) has published new guidance answering questions about upholding state nondiscrimination requirements during the COVID-19 pandemic. The guidance addresses vaccination policies and practices and other topics.
Background:
The California Fair Employment and House Act (FEHA) prohibits employers with five or more employees from engaging in employment discrimination on the basis of race, national origin, disability, age (over 40), and certain other characteristics. The FEHA also requires employers to provide reasonable accommodations to employees with disabilities, unless doing so would impose an undue hardship on the employer.
Guidance:
Published on March 4, 2021, the DFEH's guidance is provided in the form of frequently asked questions and divided into sections, including:
- COVID-19 Inquiries and Protective Equipment (five questions and answers)
- Employees with COVID-19 Symptoms or Infection (four questions and answers)
- Job-Protected Leave (two questions and answers)
- Reasonable Accommodations (five questions and answers)
- Vaccination (seven questions and answers)
For example, in the Vaccination section, the DFEH addresses these questions:
May an employer require its employees to be vaccinated against COVID-19?
Short Answer: Under the FEHA, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection as 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).
Explanation: As safe and effective vaccines against COVID-19 infection become more widely available, employers may wish to encourage their employees to get vaccinated. The DFEH does not provide guidance on whether or to what extent an employer should mandate vaccination within its workforce. Rather, the guidance addresses how an employer complies with the FEHA if it decides to require employees to be vaccinated.
The FEHA prohibits discrimination and harassment on the basis of a protected characteristic; therefore, if an employer mandates or encourages vaccination in its workforce, the employer's vaccination policy or practice must not discriminate against or harass employees or job applicants based on a protected characteristic, such as a disability, perceived disability, or religion. In addition, the FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19. It also prohibits employers from retaliating against anyone for engaging in protected activity.
If an employer requires its employees to receive a vaccination against COVID-19 administered by a third-party, may the employer require an employee or applicant to submit "proof" of vaccination?
Yes. While the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct employees or applicants to omit any medical information from such documentation. Any record of vaccination must be maintained as a confidential medical record.
Compliance Recommendations:
California employers should review the guidance in full and ensure that their policies and practices comply with all applicable laws, regulations, and guidance. Please contact your dedicated service professional with any questions.