The California Department of Fair Employment and Housing (“DFEH”) released guidance indicating that 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 and provides reasonable accommodations related to disability or a sincerely held religious belief.
While employers may mandate that employees receive vaccinations, employees have a right to object on the basis of disability or a sincerely held religious belief. If an employee objects to being vaccinated on the basis of disability, the employer must engage in an interactive process with and make efforts to reasonably accommodate the employee to address the employee’s disability-related reason for refusing to be vaccinated. However, DFEH indicates that an employer may exclude an employee from the workforce if the employer shows that the accommodations would result in an undue hardship to the employer, the employee is unable to perform the employee’s essential duties even with reasonable accommodations in place, or the employee cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health and safety of others even with reasonable accommodations.
Similarly, an employee that objects to receiving the vaccination on the basis of sincerely held religious beliefs or practices must receive reasonable accommodations, unless it would pose an undue hardship to the employer.
According to DFEH’s guidance, when considering disability-based accommodations, an employer may consider whether the employee is able to work remotely or whether reasonable safeguards could be put in place at the worksite that would allow the employee to work without endangering the employee or others.
DFEH also provides important guidance for employers in the event employees object to vaccination simply because they do not “trust” the vaccine. DFEH’s guidance indicates that employers are not obligated to provide reasonable accommodations to employees who object to getting vaccinated because they do not trust that the vaccine is safe. An employer’s obligation to provide reasonable accommodations is limited to employees who object to receiving a vaccination based on a disability or sincerely held religious belief.
Lastly, employers may require employees to provide proof that they have in fact been vaccinated. DFEH’s guidance states that requiring proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, DFEH suggests that employers instruct employees to omit any medical information from such documentation because the documentation may contain disability-related information. Employers must remember to maintain all employee records of vaccination as confidential medical records, and to keep them separate and apart from other employment files.