California DFEH Updates COVID Guidance for Employers Addressing Vaccines
Last week, California’s DFEH updated its COVID-19 Guidance for Employers adding new FAQs The full guidance can be found here: COVID-19 guidance for employers. The updates cover many issues that employers are currently struggling with relative to the pandemic and, most significantly, specifically state that employers may require their employees to receive an FDA-approved COVID-19 vaccination.
The DFEH guidance is actually similar to the EEOC’s earlier guidance and stresses that the employer must provide reasonable accommodation for disabilities or sincerely held religious beliefs or practices.
Further, the DFEH guidance clarifies that:
- Employers may not use a vaccine policy or practice to discriminate against or harass employees or job applicants on the basis of any protected characteristic or retaliate against anyone for engaging in protected activity, such as requesting an accommodation relating to COVID-19 vaccines.
- If an employer has a mandatory vaccine requirement and an employee refuses to be vaccinated but does not have a disability-based reason or sincerely held religious reason, then the employer does not need to accommodate the employee. The guidance uses the example of an employee that “does not trust that the vaccine is safe,” as a situation that would not necessarily require a reasonable accommodation. Employees must still be provided full FEHA protections.
- If the employer is administering the vaccine, any prescreening questions must be “job-related and consistent with business necessity.”
- If a third-party is administering the vaccine, the employer can require proof of vaccination, however, should take extra steps to ensure that no other protected medical information is included.
- Employers must maintain any records of employee or applicant vaccinations and prescreening information collected as confidential medical records.