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With the COVID-19 vaccine rollout being well underway throughout the state, the California Department of Fair Employment and Housing (DFEH) reportedly issued guidance on whether employers can require workers to receive a vaccination. The DFEH clarified that the guidance aims to help employers comply with the Fair Employment and Housing Act (FEHA) if they choose to mandate vaccination and not weigh in on whether employers should require employees to get vaccinated.
The department said the FEHA allows employers to mandate vaccines that have been approved by the U.S. Food and Drug Administration (FDA). However, employers may not discriminate against employees or job applicants based on a protected characteristic, like age, race, or sex, and must provide reasonable accommodations related to a worker’s disability or sincerely held religious belief. Moreover, employers are prohibited from retaliating against an employee who engages in protected activity.
So, how does this apply within the COVID-19 vaccine context? Per the DFEH, California employers must engage in an interactive dialogue with employees who have a disability-related or religious reason for refusing an FDA-approved vaccine. An employee who simply doesn’t “trust that the vaccine is safe,” however, doesn’t have to be accommodated.
According to research by the Society for Human Resource Management (SHRM), 60% of U.S. workers said they will probably or definitely get the vaccine once it becomes available to them. However, 28% of respondents said they are willing to lose their jobs if their employer requires the COVID-19 vaccine.
Employers can also “enforce reasonable disciplinary policies and practices” when employees resist the mandate but aren’t entitled to an accommodation, so long as the employer doesn’t take adverse employment action against an employee for engaging in legally protected activity — such as complaining that the policy is discriminatory.
Moreover, employers may ask workers for certain COIVD-19-related medical information through a pre-vaccination screening questionnaire if the data collected is “job-related and consistent with business necessity.” The DFEH noted that any information received must be maintained as a confidential medical record. Employers may ask for proof of vaccination if they require workers to receive a vaccine through a third-party provider. However, employers should tell employees to omit medical information that could potentially disclose a disability.
An attorney told SHRM: “While establishing on-site vaccinations may increase vaccination rates and reduce the time workers spend at off-site vaccination centers, this guidance implicates several additional legal issues related to potential premises liability, privacy concerns, and more.”
When it comes to premises liability, all property owners, including owners of private and government property in Los Angeles, have a legal duty to keep their premises safe. Therefore, a property owner may be held liable for failing to maintain their premises in safe conditions if someone is injured, sexually assaulted, or killed because of their negligence. However, determining who’s at fault in a premises liability case is complex. These types of lawsuits require an injured individual to prove that they were harmed because of a property owner or manager’s negligence.
In addition to state laws, employer policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), as well as other federal workplace laws. In addition to legally protected reasons, employees may have general objections to receiving a COVID-19 vaccination that do not require a reasonable accommodation.