As we transition back to the “normal” times before March 2020, many employers are wondering whether they can mandate that their employees be vaccinated for COVID. The Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have released guidance, stating that subject to certain religious and medical exemptions, the answer is yes. However, we do not recommend employers implement a vaccine mandate, and instead recommend employers take a more relaxed and voluntary approach to obtaining high rates of vaccination among their employees. We have provided the following Frequently Asked Questions and answers.
Do you recommend that employers implement a vaccine mandate?
No. There is not enough information yet for employers, particularly those not involved in healthcare, to implement a vaccine mandate. We instead recommend that employers promote voluntary receipt of the vaccine, including if necessary, financial or other incentives to increase employee participation.
May employers require that their employees obtain the COVID vaccine?
Generally, yes. The EEOC has stated that employers may adopt mandatory vaccination policies that require employees to be vaccinated as a condition of entering the workplace. However, employers must also attempt to accommodate employees who, due to disabilities or sincerely held religious beliefs, decline or refuse to receive the vaccine. Employers should also be careful as to what information they request from employees regarding their receipt of the vaccine, as discussed further in another question.
DFEH has stated that employers may mandate a Food & Drug Administration-approved (“FDA”) vaccination as 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, and does not retaliate against anyone for engaging in protected activity, such as requesting a reasonable accommodation.
Employers should also be aware that the FDA has approved three vaccines for “emergency” use. There is an open question as to whether this qualifies as an FDA-approved vaccine for the purposes of DFEH’s guidance. Employees in a broad array of sectors, in California and elsewhere, have filed lawsuits, arguing that employers cannot mandate receipt of a vaccine that is still under emergency use authorization, as those employees have not expressly consented to receive the vaccine. This potential risk should figure into any decision to mandate vaccination.
Can an employer require an employee to obtain a vaccine not approved for widespread use by the Food & Drug Administration?
That is unclear - we are in new legal territory! However, we think it is unlikely an employer can require that employees receive a vaccine not approved for widespread use by the FDA. The FDA authorized the “emergency use” of three vaccines, meaning that individuals may “accept or refuse administration” of the vaccine. There is already litigation challenging mandated based on this emergency status. Requiring a vaccine without FDA approval adds a new lawyer of potential liability.
What should an employer do if an employee claims a medical exemption?
Under the Americans with Disabilities Act (“ADA”), an employee may decline to obtain the vaccine based on a claimed disability. The employer must then engage in the interactive process, including determining whether a reasonable accommodation may be provided, such as working remotely. In assessing whether allowing an employee to continue working onsite would constitute an undue burden, EEOC guidance states that “the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown” may be relevant.
What should an employer do if an employee claims a religious exemption?
If an employee declines to obtain the vaccine on grounds of a religious practice or belief, an employer must extend reasonable accommodation, if possible, unless doing so would be an undue burden. In this context, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Where, however, an employer has “an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.” “It’s my religion to not get a vaccine” is unlikely to qualify as a sincerely held religious belief.
Must an employer reasonably accommodate an employee who does not believe the vaccine is safe?
If an employee does not have a disability-based reason or sincerely-held religious belief reason for not being vaccinated with an FDA-approved vaccine, DFEH guidance states an employer is not legally required to reasonably accommodate the employee. More simply, “being an anti-vaxxer” does not require an employer to provide a reasonable accommodation.
Doesn’t California have a “personal belief” exemption for vaccines?
Until recent years, California had a personal belief exemption for vaccines in public schools, but that has not been the case in the employment context. Vaccine mandates for employees are only permissible to address a present risk at a workplace, so they remain relatively rare.
May employers offer financial or other incentives to employees who do not volunteer to be vaccinated?
Yes, as long as the incentives are available to all employees who have not already been vaccinated. Many employers have previously offered incentives to employees who engage in healthy lifestyle choices, such as obtaining a flu shot, and this option may be pursued for non-COVID vaccinated employees as well. Consult with competent legal counsel to design your program.