Use caution if you are considering making COVID-19 vaccines mandatory.The California Department of Fair Employment and Housing (DFEH) has updated its COVID-19 guidance effective 3/4/2021. The DFEH now says employers may require employees to receive an FDA-approved vaccination. The keyword being FDA-approved as the currently available vaccines are not FDA-approved and have only received emergency use authorization (EUA) at this time. This guidance can mislead many employers because several COVID vaccines are available and are being administered to many people. The new guidance relates only to FDA-approved vaccines. As explained in an FDA update on COVID preventions and treatments, EUA and FDA approval are not the same thing.
“The EUA process is different than an FDA approval or clearance. Under an EUA, in an emergency, the FDA makes a product available to the public based on the best available evidence, without waiting for all the evidence that would be needed for FDA approval or clearance.”Furthermore, to the extent practicable, the FDA must ensure that recipients of the vaccine under an EUA are informed of a variety of things, including that consumers have “the option to accept or refuse the vaccine, and of any available alternatives to the product.” Absent additional clarification and/or FDA approval, [Greenberg Glusker Law Firm] does not infer this new DFEH guidance as permission to implement a mandatory COVID vaccine program.
Comply With the FEHAEven when offering a voluntary vaccination program or deciding to require employee vaccinations that are FDA-approved, employers must still comply with the Fair Employment and Housing Act (FEHA). This means the employer must:
- Not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
- Provide reasonable accommodations related to disability or sincerely held religious beliefs or practices;
- Employers must engage in the interactive process with and reasonably accommodate these objections. Accommodations may include allowing the employee to continue to work from home, altering/staggering shifts, providing extra air purification and other increased safety measures, and, in some instances, job restructuring, although employers don’t have to provide accommodations that result in “undue hardship.”; and
- Not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).
Protect Employees’ Medical InformationThe guidance makes clear that employers who are administering a voluntary COVID-19 vaccination program themselves may only ask employees for medical information if the questions are “job-related and consistent with business necessity.”
Q&A For CA EmployersCan you have mandatory vaccines for your employees?
Not at this time. The DFEH says employers may require employees to receive an FDA-approved vaccination; however, the current vaccines are only given emergency use authorization and are not technically FDA-approved at this time.Can I ask my employees if they have been vaccinated or not?
Yes. Employers may ask employees if they have been vaccinated or not to assess workplace safety and risk factors. However, employers should clarify that employees will not be discriminated against based on religion, disability, or medical condition.Can I ask my employee for proof of vaccination?
Yes. An employer can require an employee or job applicant who represents that they have been vaccinated to provide proof. However, the request must not be related to disability, religious creed, or a medical examination. Employers should instruct employees and applicants to omit any medical information regarding disabilities or other protected information from any proof of vaccination.For more information, refer to the guidance below often so that you are up to date on the latest COVID-19 laws and regulations.
CA Guidance and Resources for COVID-19
- DEHA COVID-19 Guidance https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf
- CDC Guidance for Businesses and Employers Responding to COVID-19 https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
- CA Department of Public Health COVID-19 Guidance https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Guidance.aspx
- Cal/OSHA COVID-19 Guidance and Resources https://www.dir.ca.gov/dosh/coronavirus/Health-Care-General-Industry.html