To mandate vaccinations or not to mandate vaccinations, that is the question. As instances of the COVID-19 Delta variant rises across the country more and more businesses are beginning to require vaccination as a condition of employment.
The Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ) and the California Department of Fair Employment and Housing (DFEH) have all ruled – with exceptions for religious and disability-related accommodations – that businesses may lawfully require workers to be vaccinated as a condition of coming into the workplace. But from a practical standpoint, what do these rulings really mean? There are several resources to assist employers in complying with various state and federal laws dealing with vaccination issues in the workplace. Included below are answers and references to helpful resources for tackling some of the most commonly asked vaccination mandate questions.
Overall, employers dealing with vaccine-related questions can find guidance in both state and federal law. The California Fair Employment and Housing Act (FEHA) (enforced by the DFEH) applies to employers with 5+ employees and prevents harassment, discrimination or retaliation based on protected classifications (e.g., physical or mental disability, religion). Federal Equal Employment Opportunity laws provide protection for those with physical disabilities (the Americans with Disabilities Act (ADA)) and prohibit discrimination based on protected classifications such as religion (Title VII of the Civil Rights Act of 1964 (Title VII)). Both federal statutes apply to employers with 15+ employees. It is important to remember that employers must always apply the law(s) most protective of the employee.
May an employer lawfully require vaccination as a condition of employment? The short answer is “yes” however:
- Under the FEHA employers may not discriminate against or harass employees (or job applicants) based on protected classifications (e.g., physical disability, religion) or retaliate against employees (applicants) for engaging in protected activity.
- Employers must provide a reasonable accommodation (absent an undue hardship) relating to a disability, or sincerely held religious belief or practice, that would prohibit or prevent the employee or applicant from receiving a vaccination.[i]
- Under federal law, if an employer requires employees to be vaccinated (i.e., a condition of employment) AND an employee says they cannot be vaccinated because of a disability, then under ADA the employer must show that this requirement is job-related and consistent with business necessity.[ii]
- WYSK questions K.2 and K.11 address the employer’s responsibility for a reasonable accommodation where an employee claims they cannot be vaccinated due to a disability (also examples of reasonable accommodation for religious belief).
- WYSK question K.12 discusses the employer’s duty to reasonably accommodate a refusal to vaccinate based on a sincerely held religious belief.
If an employer implements a mandatory vaccination policy, and an employee chooses not to get vaccinated, is the refusal grounds for termination? See above regarding the employer’s duty to reasonably accommodate.
- Under state law, where the refusal is because the employee questions the mandate and does not request a reasonable accommodation, the employer can enforce its reasonable disciplinary policies. However, an employer may not discipline or retaliate against an employee who alleges the policy (in this case the mandatory vaccination policy) intentionally or disproportionately discriminates based on a protected classification.[iii]
If an employer has a vaccination mandate and the employee suffers side-effects (short or long-term) to the vaccine, is the employer liable for a workplace injury claim under the Workers’ Compensation system?
- Possibly. There is strong evidence to assume that an employer-mandated vaccination would likely be considered part of work. However, you should check with your workers’ compensation carrier for clarification.
Can an employer legally ask for proof of vaccination? The short answer is “yes” however:
Under State law:
- Because a proof of vaccination could disclose disability-related information, employers should instruct employees to omit any medical information from the proof document.
- Employers must treat proof of vaccination documentation as a confidential medical record.[iv]
Under Federal law:
- Requesting proof of vaccination is not considered a disability-related question – but see above state law caveats.[v]
- As with state law, caution must be taken when asking why an employee is not vaccinated as this could result in an employee revealing information about a disability
- Verbal confirmation/documentation of vaccination status is confidential medical information.[vi]
If an employee refuses to vaccinate based on a protected classification (e.g., age, religion, medical condition(s)) what proof/certification or clarifications can an employer request be provided?
- When an employer learns of the possible need for a reasonable accommodation (e.g., the need for a reasonable accommodation due to disability, religion, or any other protected classification) it should immediately engage in a timely, good faith interactive process.
- During the interactive process the employer and employee can engage in a discussion regarding:
- The employee’s explanation of their sincerely held religious belief, and if necessary, provide appropriate documentation from their religious leader regarding the belief that conflicts with the employer’s vaccination requirement; or
- The employee’s request to accommodate an existing disability and certification of the need for the requested accommodation (e.g., limitations on receiving the vaccination).
- Employer’s must be cautious in requesting medical certification to make sure the employee’s health care provider does not disclose medication information about any underly medical conditions/diagnosis.
Employers considering implementing a mandatory vaccination policy should contact Western Growers for additional information.
- WGA’s COVID-19 Resources page.
- EEOC resources on COVID-19 including its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO laws (WYSK).
- The California Department of Fair Employment and Housing’s Employment Information on COVID-19.
[ii] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and other EEO laws (WYSK) question K.5. California law does not require an employer to show its mandated vaccination policy is job-related or consistent with business necessity and would therefore be considered more protective of the employee.
[iii] DFEH pg., 9.
[iv] DFEH pg. 10.
[v] WYSK question K.9.
[vi] WYSK questions K.4. and K.9.
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