by Alexandra Saddik
As the state moves forward with reopening and COVID-19 vaccines become more widely accessible, the guidance on what employers can and cannot do with regards to vaccinations is still ambiguous. Here is where the guidance is currently on the state and federal level, along with some best practices for addressing employment issues in regard to vaccinations.
Can An Employer Implement a Mandatory Vaccination Policy?
Both the Equal Employment Opportunity Commission (EEOC) and The Department of Fair Employment and Housing (DFEH) indicate that employers are allowed to implement a mandatory vaccination policy requiring employees to be vaccinated against COVID-19. In implementing a vaccination policy, employers are required to provide reasonable accommodation for employees who assert they are unable to take the vaccine due to a disability, perceived disability, or religion.
If an employee requests reasonable accommodations on one of these grounds, then the employer must go through the interactive process to reasonably accommodate. Per the EEOC guidance, reasonable accommodations may include requiring unvaccinated employees to:
- Wear a face mask.
- Socially distance in the workplace.
- Get periodically tested for COVID-19.
- Work a modified shift to minimize the number of people the unvaccinated employee is exposed to.
- Work remotely.
- Be reassigned.
The DFEH only specifies remote work or ensuring that procedures are in place to minimize risk as reasonable accommodations, but does not exclude the possibility of other reasonable accommodations existing.
Both the DFEH and the EEOC do allow employers to exclude an employee from the workplace without providing a reasonable accommodation if: (1) the employer can establish that a reasonable accommodation would pose an undue hardship on the employer; (2) the employee cannot perform essential duties even with the accommodation; or (3) the employee will endanger health or safety even with reasonable accommodations.
Reasonable accommodations are not required if an employee does not want to take the vaccine due to concerns of the vaccine’s safety. However, employers need to be careful when enforcing the mandatory vaccination policy not to retaliate against an employee if the employee engages in a protected activity, such as protesting the policy as discriminatory.
Can An Employer Implement a Voluntary Vaccination Policy?
The DFEH does not address voluntary vaccination policies, but the EEOC guidance indicates that a voluntary vaccination policy using incentives is allowable provided that it is not discriminatory, and the incentive is not so substantial as to be coercive. If, however, an employee voluntarily gets vaccinated outside of the company framework, the EEOC does not place a limit on incentives.
For example, an employee who decides on the employee’s own volition to get vaccinated through a third-party provider not affiliated with the employer and provides proof of vaccination may receive unlimited incentives. In contrast, an employee who receives the vaccine through a third-party affiliated with the employer as part of an employer’s voluntary vaccination policy will receive more restrictive incentives because the EEOC’s limit is applied.
What Information Can Employers Request the Employee to Provide?
Though the guidance here gets particularly murky, both the DFEH and the EEOC do appear to allow employers to ask about vaccination status and request proof of vaccination. Any information related to the vaccines must be treated as a confidential medical record under the ADA. Additionally, employers should be careful not to ask for information beyond vaccination status unless there is a need to engage in the interactive process.
While both the DFEH and the EEOC allow mandatory vaccination policies, such policies carry considerable risk for two reasons. First, given the ambiguity of the guidance, an employee can still make an argument that mandating the vaccine is discriminatory and/or violates an employee’s privacy rights. Depending on how the policy is implemented, there is also a potential argument that the policy creates a disparate impact or singles out a particular protected class. Until courts start to deal with the issues surrounding mandatory vaccination policies, employers will not have a sense of what specifically is considered permissible.
Voluntary vaccination policies are even riskier. Apart from the same issues associated with mandatory vaccination policies, an incentives-based voluntary vaccination policy creates potential wage and hour issues. Furthermore, it is important to note here that the DFEH—which tends to be more restrictive than the EEOC—does not comment on the validity of voluntary vaccination policies. As such, it is even more uncertain how courts would treat such policies should litigation occur.
As of now, the safest option is to simply provide employees with resources and recommend the vaccine without incentives. This mitigates the risks described above. Employers should pair this with continued compliance with Cal/OSHA’s worksite prevention protocol, state guidance, and applicable local guidance.
If an employer chooses to implement a vaccination policy, best practices include:
- Make it a written policy that employees are aware of.
- Craft the policy as a mandatory vaccination policy.
- Do not offer incentives for vaccinating.
- If an employee requests an accommodation, document the entire process.
- Only ask for proof of vaccination status; this could include a copy of the employee’s vaccination card or a written certification that the employee was vaccinated.
- Do not implement a vaccination program for employees or have a third-party provider come into the workplace to implement the vaccines; provide information about where employees may get the vaccine and have employees arrange to get their vaccination themselves.
- Give the employee paid time off if the employee decides to get vaccinated during the workday.
Whether you decide to implement a mandatory policy or simply have questions about the impact of COVID-19 vaccines in the workplace, Ferber Law is able to assist.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.