The Department of Fair Employment and Housing (DFEH) recently released guidance on employer-mandated COVID-19 vaccinations. Below is a summary of this guidance.
Employers can mandate their employees receive the COVID-19 vaccine (the “vaccine”), with three notable exceptions:
• Disability
• Medical reasons
• Sincerely held religious belief or practice
Employers who choose to require vaccines should have a written policy in place that includes how an employee may request an exemption.
What if an employee requests an exemption?
If the exemption is based on a disability or a sincerely held religious belief or practice, the employer must initiate and document an interactive exchange with the employee to determine whether a reasonable accommodation is in order. An employer may not discriminate or retaliate against employees or candidates for requesting an accommodation, or for the basis behind the request. An employee who does not trust or is choosing to not get the vaccine is not eligible for an exemption.
Proof of vaccination
An employer may require an employee provide proof that he or she was vaccinated. However, the employer should advise the employee to remove all medical information from the record before providing a copy. Vaccine records are considered medical records, and should be kept in a separate, confidential employee file.
While employers can mandate vaccines, should they?
This is a question with a less precise answer. When considering whether the vaccine should be mandated, an employer may ask themselves whether the vaccine mandate is job related and consistent with business necessity. Employers should also be prepared for possible employee relation concerns.
One additional fact to keep in mind – regardless of vaccine status, all employees must continue to adhere to health and safety mandates. In other words, vaccinated employees will need to be required to continue wearing face masks and social distancing in the workplace and in public.
