In January 2021 we advised employers on guidance from the Equal Employment Opportunity Commission ("EEOC") regarding mandatory vaccination and provided our thoughts on best practices for employees in mandating the vaccine. The EEOC is responsible for enforcing federal laws related to employment practices. Recently, the California Department of Fair Employment and Housing ("DFEH"), the entity charged with enforcing California’s civil rights laws in employment, housing and business, has said that under Fair Employment and Housing Act ("FEHA"), employers may require employees to receive FDA approved vaccination against COVID-19 provided that:
- The employer does not discriminate on the basis of a protected characteristic;
- The employer provides for sincerely-held religious belief and medical exemptions and reasonable accommodations; and
- The employer does not retaliate against employees for engaging in protected activity including requesting a reasonable accommodation.
In issuing this guidance, the EEOC and DFEH are not suggesting that employers should mandate vaccination. If employers choose to require their employees receive the vaccine, they should take heed of this guidance to ensure compliance with federal and state discrimination laws. We have developed the following questions and answers to address key takeaways and considerations for employers evaluating whether to mandate vaccination.
Q. Does this guidance from the EEOC and DFEH mean employers cannot be sued for mandating vaccination?
A. No. The EEOC and DFEH guidance are not laws. Employers can certainly use this guidance in the defense of any claim brought by employees subject to mandatory vaccination policies, but it does not eliminate the possibility of a lawsuit or ensure that they claim will not succeed at trial. This is why it is critical that employers consult with trusted legal counsel before deciding whether to mandate and should develop a written vaccination policy whether or not the employer requires vaccination.
Q. What would be a good first step before considering whether to mandate vaccination?
A. Employers may wish to poll their employees to determine how many have already been vaccinated and whether employees are intending to vaccinate. Employers should refrain from asking why an employee has not received or does not plan to vaccinate. It may seem like a simple, benign question, but it also might reveal a disability or confidential medical information. Consider whether the part of your workforce that is public facing, or in regular contact with other employees will get vaccinated on their own. Employers may not need to take on the administrative burden of mandatory vaccination if the majority of its workforce will obtain the inoculation on their own.
Q. Can employers request written proof that an employee has been vaccinated?
A. Yes. An employer may ask for and request proof of an employee's vaccination. The employer should remind employees to only provide evidence of the vaccine and not have it contain any confidential medical information like answers to pre-vaccination questionnaires.
Q. What are some other considerations for mandating the vaccine?
A. There are several factors to consider:
- Cost - Some vaccine administrators are charging a small fee, although the vaccine itself should have no cost because it is being provided by the federal government. Another consideration, is the cost of compensating employees for the time it takes to receive the vaccine and their mileage or public transportation costs.
- Exemptions - According to the EEOC and DFEH, employers must provide an opportunity for a sincerely held religious belief or disability exemption. In order to establish the religious exemption, employers can require evidence. That evidence can be a signed statement on official letterhead from a religious leader of the employee's faith and explains the teachings that oppose immunizations. In order to establish the disability exemption, an employer may request a physician's note confirming some contraindication on immunization for the employee and an employer can also request information on the expected duration of the disability. Employers should be careful not to ask for too many details about the underlying medical condition and seek documentation that specifies that the employee has a contraindication to immunization.
- Accommodations - Employers must engage in the interactive process to determine potential accommodation if the employee has a valid exemption. An employer may offer an alternative position or job restructuring to allow for remote work for someone who is unvaccinated to work apart from others who have been vaccinated. Other options include changing a work assignment or an unpaid leave of absence with job protection. This means that employers should keep the same or equivalent position open for a reasonable amount of time.
Q. What if accommodating an employee with an exemption causes undue hardship?
A. Undue hardship is a very difficult to show. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause the employer significant difficulty or expense. The employer must consider the cost to provide the accommodation, the entity’s financial resources, its number of employees, resources of the overall business operation, and the impact of the accommodation on the facility. Importantly, a “cost-benefit analysis” is not the standard and whether the accommodation would result in a reduced benefit to the employer is not a factor. Employers considering refusing accommodation due to undue hardship should first consult with legal counsel.
Q. Can employers bypass symptom checking protocol, face coverings or quarantine requirements for vaccinated individuals?
A. Not at this time. For California employers, the Cal OSHA Emergency Temporary Standards ("ETS") do not yet provide an exemption to the requirements regarding face coverings, physical distancing, and exclusion from work due to exposure for vaccinated employees. Cal OSHA has indicated its intent to update the ETS relative to vaccinations. Check on the FAQ page and consult with legal counsel before making any changes to your current COVID-19 safety protocol.
Q: For employers who mandate the vaccine, if an employee refuses to vaccinate since the vaccine is not truly proven, side effects are still unknown, and they do not trust the vaccine is safe, is this a valid reason?
A. While these are a legitimate concerns, they are not valid legal exemptions. Because evaluation of an employee’s exemption request is highly fact-specific, employers should consult with legal counsel before taking any action to exclude employees from work for refusing the vaccine.
Q. If an employee gets the vaccine through a mandate at work and experiences illness, can the employer be held responsible?
A. At present, there is no guidance on this issue from the EEOC or DFEH. This is another reason to proceed with caution if considering mandating the vaccine and to consult with legal counsel prior to making any decision.
Q. Is excluding an employee from work the same thing as requiring remote work?
A. No. When an employer excludes an employee from work for failure to comply with a vaccine mandate, this means the employee cannot visit the worksite and has no alternative means of performing work for compensation for the employer. If remote work is an option, employers should permit it.
Q. Can employers mandate some employees receive the vaccine and not others?
A. According to the present EEOC guidelines, yes, though the reason cannot be discriminatory. For example, if an organization offers work in a warehouse where 50 percent of employees are customer facing and cannot work six feet apart, and the remaining employees work in different area of the facility where employees have their own office or cubicle without contact with the public, those two populations are distinctly and objectively different. The employer could mandate the higher risk population receive the vaccine and the lower risk population voluntarily obtain the vaccine. Again, consult with legal counsel before making any decision relative to select mandates of the vaccine.