The Department of Fair Employment and Housing ("DFEH") recently issued updated COVID-19 FAQs related to COVID-19 vaccination. Some of this newly-issued guidance may impact the way in which California employers choose to proceed with vaccination in light of their specific business operations and individual employee circumstances.
In our recently-issued legal update on vaccination, we noted that the Equal Employment Opportunity Commission (“EEOC”) previously opined that employers had the right (but not the obligation) to require employees to be vaccinated against COVID-19. In the same legal update, however, we addressed a number of business concerns that may cause employers to think twice about doing so. Our legal update can be found here and the EEOC guidance can be found here.
In its newly-minted guidance, the DFEH aligns itself with the EEOC on the vaccination issues for the most part, and it answers the question on every employer's mind these days – can I mandate vaccination? According to the EEOC, and now the DFEH, the answer is yes (barring some reasonable accommodation and protected activity issues).
Below are some key excerpts from the new DFEH FAQs:
A. Yes. Under the Fair Employment and Housing Act (“FEHA”), employers can require their employees to receive FDA-approved COVID-19 vaccinations … “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).”
Notably, the DFEH was clear that just because an employer can mandate vaccination in most instances, that does not mean an employer is required to mandate vaccination if it chooses not to do so: “[The] DFEH does not provide guidance on whether or to what extent an employer should mandate vaccination within its workforce.” Again, as addressed in our prior update, there are numerous business considerations that may preclude employers from taking this bold step.
Employers who do not wish to mandate vaccination, but who do wish to encourage employees to vaccinate, can incentivize employees by offering bonuses, vacation days, or other benefits to those employees who choose to be vaccinated, without making it a requirement. As we have noted previously, these vaccine incentives carry their own legal hurdles, so be mindful of wage and hour issues related to the provision of non-discretionary bonuses, and watch for discrimination issues if you are offering incentives to certain employees but denying those incentives to employees who would otherwise be willing to receive the vaccine, but cannot do so for medical reasons or sincerely-held religious beliefs.
A. Yes. The FEHA requires employers to reasonably accommodate employees’ “known disabilities” and “sincerely-held religious beliefs.” According to the DFEH guidance, “…, if an employer mandates vaccination in its workforce, and an employee objects to vaccination 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, and the employer may not retaliate against an employee for requesting such an accommodation.”
Employers should be prepared to consider potential accommodations in lieu of mandating the vaccine, including allowing employees to work remotely. Consult with legal counsel if a situation arises in which it appears that an accommodation cannot be made.
A. No. According to the DFEH, “If an employee does not have a disability reason or sincerely-held religious reason for not being vaccinated with an FDA-approved vaccine, the employer is not legally required by the FEHA to reasonably accommodate the employee.”
That said, be sure to carefully consider (and discuss with counsel) your next steps if an employee refuses to be vaccinated. Some polls show that up to 35% of Americans have indicated they will decline the vaccination, which, if true, could mean losing a large portion of your workforce. If you require vaccination and an employee will not comply, you may be faced with having to terminate the employee, which could result in a costly and time-consuming wrongful termination claim.
Consider instead holding off on termination and first putting the employee on a temporary unpaid leave of absence. This will give the employee an opportunity to consider the available options before being terminated, and give you time to consider your options with legal counsel.
A. Yes, but proceed with caution. The DFEH notes that employers who administer a vaccination program may, “… ask questions that could elicit information about a disability - including questions on a pre-vaccination screening questionnaire - so long as the inquiry is “job-related and consistent with business necessity.” Any retained record of employee or applicant vaccination must be maintained as a confidential medical record. Before instituting any such questionnaire, employers should consult with a medical professional about what information is truly necessary, and with employment counsel about proper screening questions and privacy protocols.
A. Yes. The DFEH notes that, “…simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination.” The DFEH cautions however, that “… because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation.”
On March 8, 2021, the Centers for Disease Control and Prevention (“CDC”) issued “Interim Public Health Recommendations for Fully Vaccinated People.” Notably, the CDC stated that these recommendations are just the “first set” of recommendations, and they will be “ … updated and expanded based on the level of community spread of SARS-CoV-2, the proportion of the population that is fully vaccinated, and the rapidly evolving science on COVID-19 vaccines.”
The CDC also noted that these “recommendations apply to non-healthcare settings.” Employers in healthcare settings should review the CDC’s updates for their workforces here.
California employers must remember that the Cal/OSHA Emergency Temporary Standards (see our legal update here), as well as other California state or local rules, will supersede all or portions of these CDC recommendations. Employers should consult with counsel before making changes to their workplace policies based on CDC recommendations.
With that caution in mind, the question and answer series below covers the highlights of the current CDC recommendations:
The CDC provides that, “ … people are considered fully vaccinated for COVID-19 ≥2 weeks after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after they have received a single-dose vaccine (Johnson and Johnson (J&J)/Janssen).”
According to the CDC, they can – “ Visit with other fully vaccinated people indoors without wearing masks or physical distancing;  Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing;  Refrain from quarantine and testing following a known exposure if asymptomatic.”
Absolutely not. The CDC was clear to note that even fully vaccinated persons should continue to take precautions. As suggested precautions, the CDC lists that, “…fully vaccinated people should continue to:
Again, as the CDC continues to roll out these and other vaccination-related recommendations into the future, California employers must always remember that California law, including the Cal-OSHA ETS regulations and other state or local COVID-19 regulation requirements, will supersede any CDC recommendation. The CDC’s recommendations, are just that – general recommendations for the public. The CDC recommendations do not alter the applicable California law or local regulations for your workplace.
The DFEH guidance also provides additional information regarding COVID-19 beyond vaccination issues, and employers should take time to review the DFEH's guidance in its entirety. The updated DFEH guidance can be found on the DFEH website or by clicking here. The CDC recommendations for fully vaccinated individuals is in its “first round” and subject to regular updates by the CDC. Employers should review the guidance here.
For further information regarding COVID-19 questions, or other employment law issues, contact the attorneys at LightGabler.