June 21, 2021

Volume XI, Number 172

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June 21, 2021

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June 18, 2021

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You Get a Shot, and You Get a Shot! California Paves the Way for Mandatory Vaccination Policies

Weeks after the Equal Employment Opportunity Commission (“EEOC”) weighed in, the California Department of Fair Employment and Housing (“DFEH”) recently released updated COVID-19 employment FAQs addressing the permissibility of employer-mandated COVID-19 vaccination policies.

Taking a page from the EEOC’s January 2021 guidance, the DFEH indicated that employers may require employees to receive an FDA emergency use authorized COVID-19 vaccine so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic and provide reasonable accommodations related to disability and/or sincerely-held religious beliefs.

Per the DFEH’s guidance, if an employer mandates vaccinations in the workplace and an employee objects on the basis of a disability, the employer must engage in an interactive process with, and reasonably accommodate, the employee with a disability-related reason for not being vaccinated—unless the accommodation would pose an undue hardship to the employer, the employee cannot perform the essential job duties even with a reasonable accommodation, or the employee cannot perform the job duties without endangering the employee’s or others’ health and safety.  Similarly, employees who decline to obtain a vaccination on the basis of religious beliefs or practices must be provided with a reasonable accommodation, unless it would pose an undue hardship to the employer.

And, what about employees who merely don’t trust the vaccine?  The DFEH’s new guidance indicates there is no obligation to reasonably accommodate employees whose opposition to being vaccinated is not related to a disability or religious beliefs.

But, how can employers ensure that employees are, in fact, vaccinated?  The DFEH’s guidance indicates that employers may require employees to furnish “proof” that they have been vaccinated as part of the vaccine requirement—because this is not a disability- or religious creed-related inquiry or medical examination.  However, the DFEH’s FAQs caution employers to instruct employees to omit any protected medical information from their documentation prior to submission.  Further, once collected, the DFEH indicated that employers must maintain records of employee or applicant vaccination as confidential medical records.

As vaccines have become more accessible, much of the initial insecurity surrounding them has given way.  One indicator of this shift is the decrease in vaccines wasted over time.  In January, when the vaccine faced more skepticism, states rarely used over 60 percent of their available doses.  Now, states report using 80-90% of their daily vaccines and California is vaccinating over 350,000 people per day.  Employers looking to implement a mandatory vaccine policy may seek to capitalize on this positive momentum as we return to the workplace and even a semblance of normalcy.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 77
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About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm
Partner

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

310-284-5690
Phillipe Lebel labor & Employment Attorney Los Angeles Proskauer Law Firm
Associate

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and breach of contract litigation, in both the single-plaintiff and class-action context, at both the trial and appellate level, and before administrative agencies. Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board. Additionally, Phil counsels clients to ensure compliance with federal...

+1.310.284.4558
Associate

Dylan Tedford is an associate in our Labor and Employment Department. Dylan graduated from the University of Southern California Gould School of Law, where he was a member of the Hale Moot Court Honors Program and served in several student organizations. While at USC, he was a legal extern for Judge Gregg Zive in the U.S. Bankruptcy Court for the District of Nevada. Prior to law school, Dylan was a government affairs coordinator for a lobbying firm in Nevada.

310-557-4566
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