California’s DFEH Issues Guidance on Mandating Vaccine

attorney Sue m. Bendavid

Sue M. Bendavid | Shareholder

March 12, 2021

Chrystal Ferber | Associate

March 12, 2021

Following the one-year mark after the start of the pandemic, California’s Department of Fair Employment and Housing (DFEH) updated its COVID-19 Frequently Asked Questions to include long-awaited guidance regarding mandatory vaccinations, among other COVID-19 workplace-related issues.

As anticipated, DFEH’s guidelines closely align with the U.S. Equal Employment Opportunity Commission’s vaccination guidelines issued in December 2020 (read our blog here). DFEH affirms that an employer can generally require mandatory COVID-19 vaccinations if employers abide by California’s anti-discrimination, harassment, and retaliation laws. Specifically, employers must:

  1. Not discriminate against or harass employees or job applicants based on a protected characteristic;
  2. Provide reasonable accommodations related to disability or sincerely-held religious beliefs; and
  3. Not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

DFEH’s FAQs also provide that employers may themselves administer a vaccination program. Doing so, however, may require employees to answer questions that could elicit information about an employee’s disability (e.g., through a pre-vaccination questionnaire). DFEH emphasizes that any inquiries must be “job-related and consistent with business necessity.” As the guidelines also permit employers to obtain “proof” of vaccination, employers may consider instead directing employees to third-party vaccine providers to reduce the risk associated with administering vaccines themselves. As any such request could also include disability-related medical information, employers should instruct employees to omit any medical information from these documents. Regardless of the vaccination program an employer selects, any records of vaccination must be kept confidential.

And according to the Centers for Disease Control and Prevention’s (CDC) guidelines, which have been recently adopted by the Los Angeles Department of Public Health, individuals will be considered “fully vaccinated” following two or more weeks after an employee’s final dosage of a vaccine (two doses for Pfizer and Moderna and a single dose for Johnson & Johnson). A fully vaccinated individual can:

  1. Gather indoors with a small number of other fully vaccinated people without wearing a mask or social distancing;
  2. Gather indoors with unvaccinated people from one other household without a mask or social distancing, unless any of those people or anyone living with them has an increased risk for severe illness from COVID-19; and
  3. Refrain from quarantine and testing if exposed to a COVID-19 case, unless they develop symptoms.

Fully vaccinated people should continue to maintain the same protective measures when in public (e.g., wear a mask, social distance, and watch for COVID-19 symptoms).

All this is timely news as L.A. County announces that it anticipates additional re-openings next week, such as for fitness centers, movie theaters, and schools, as the County continues to flatten the curve.

While DFEH’s guidance generally permits the use of mandatory vaccines, employers should consider the legal issues any mandatory vaccine program poses. DFEH’s guidance is not binding law and it is not known how California’s courts would subsequently rule on the issue. Further, any mandatory vaccine program may impact employee morale and could create issues when handling employees who refuse to get vaccinated (regardless of the basis for their refusal).

Employers who choose to implement a mandatory vaccination program should:

  1. Use a third-party vaccine provider and instruct employees to omit any medical information from their “proof” of vaccination documents;
  2. Treat any records of vaccination as confidential; and
  3. Circulate a vaccination policy that addresses ways to request accommodations.

Please feel welcome to contact a member of our Employment Practice Group if you have any questions.

Sue M. Bendavid and Chrystal Ferber are employment defense attorneys.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.

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