Updated:Can CA employers require employees get the COVID-19 Vaccination when it becomes available?
California is already distributing the vaccine to select groups, namely frontline healthcare workers and those 65 and older. According to LA Cares, it is anticipated the vaccine will be available to those 16-65 as soon as Spring or Summer of 2021.
Most employers are looking ahead to mitigate liability and for the most part would like to mandate all employees be vaccinated. The Equal Employment Opportunity Commission (EEOC) has finally issued some guidance. Under Federal law- Yes, an employer can mandate employees get vaccinated, with four distinct exceptions:
Employers need to wait until the vaccine is made available to employees. As of now the vaccine is available to limited groups (frontline healthcare workers and those over the age of 65). Once the vaccine is made available to employees for their demographic an employer may establish a vaccine mandate.
Employers cannot require employees to get vaccinated if the employee's own health condition or disability prevents them from doing so. This falls under ADA laws and California FEHA laws regarding disabilities. In the event an employee states they cannot get vaccinated because of their health or disability, you need to immediately engage in the interactive process. See my blog post here for more information on that process. Employers will then need to accommodate the employee, including but not limited to requiring the ongoing use of PPE for that employee. This is always an individualized answer and the result is based on the interactive process.
Employers cannot require employees who have a religious belief that prevents them from being vaccinated. This can get tricky as its rocky ground for an employer to decide the validity of an employee's religious belief. If the employee has a genuine religious belief then you engage in the interactive process with them to come up with alternative solutions. This is similar to the employees who have a health or disability that prevents them from being vaccinated.
Employers may not be able to unilaterally mandate a vaccine policy if there is a collective bargaining agreement in place. Employers with collective bargaining agreements must engage with the union before establishing such a policy.
As of now it seems California and its localities are going by the EEOC guidance. Further updates will be made to this blog if additional guidance is made available.
UPDATE- California's Department of Fair Employment and Housing (DFEH) Says Yes
Recently the DFEH has provided new guidelines allowing employers to require employees to get vaccinated. Of course there are caveats.
Under FEHA, an employer may require an employee to get vaccinated so long as the employer "does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices and does not retaliate against anyone for engaging in protected activity.
The employee merely refusing to get the vaccine, without requesting an accommodation or posing a religious based objection, is not a protected activity and an employer may discipline the employee.
Risk Factors to Consider
Employers should be hesitant in doing medical screenings of employees. An employer may ask an employee if they have been vaccinated, but any further questioning could be deemed a medical examination and violate provisions of the ADA.
Be careful in providing incentives to employees to get vaccinated. Money incentives can interfere with wage and hour laws in accounting for the money. Verbally or in writing such as email encouraging employees to get vaccinated is fine, but an employer must be careful in the wording of this as it might violate provision of the ADA.
Employers should compensate employees for the time they take in getting vaccinate if the employer has a vaccine mandate policy. It is not clear if an employer may use accrued sick leave in California or Los Angeles.
Employers need to keep medical records of employees confidential at all times. If an employer requires proof of vaccine it may request the employee to provide it or otherwise needs to abide by HIPAA laws in getting permission from the employee to request proof from their health care provider. Employee medical records must be kept separate from employee's personnel file.
If you have any employee issues, employment law questions or questions regarding this post feel free to reach out to me. You may contact me by phone at (818) 306-0686 or by email at firstname.lastname@example.org
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The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.