COVID-19 vaccines are becoming more readily available each day. As a result, not only are more doses being administered, but much of the initial insecurity surrounding them has faded. One reason for this is because there is a decrease in vaccines wasted over time. In January 2021, when the vaccines were first being released – they faced more skepticism, and states were reluctant to use the available doses. In fact, in the first few weeks, states rarely used over 60 percent of their available doses. There are now more vaccines out and they are becoming much easier to access – I have even seen signs that they are available at local drugstores.
Because of the increased vaccine distribution and growing confidence in their efficacy, now, states are reporting using more than 80 percent of their daily vaccines. California is currently vaccinating about 350,000 people per day. With the growing vaccine distribution and momentum, many employers are looking to implement a mandatory vaccine policy. To date, guidance on that topic has primarily come from the Federal Government. However, earlier this month, the California Department of Fair Employment and Housing released it owns state level guidance.
In March 2021, the California Department of Fair Employment and Housing (the “DFEH”) released an updated COVID-19 employment fact statement discussing whether employers can make it mandatory for their employees to get the COVID-19 vaccine, which may be found here. The California Department of Fair Employment and Housing stated that employers may require employees to receive an FDA emergency COVID-19 vaccine as long as the employer does not discriminate against or harass employees and/or job applicants on the basis of a protected characteristic. Basically, employers must be cautious of employees who have a valid reason to opt out of taking the vaccine. Specifically, employers must also provide reasonable accommodations for people with disabilities and/or religious beliefs.
The California DFEH provided instructions on how employers should go about mandating COVID-19 vaccinations, stating that that if an employer decides to mandate vaccinations in the workplace and an employee refuses on the basis of a disability, the employer must engage in an interactive process with, and possibly provide a reasonably accommodation for, the employee with a disability-related reason for not being vaccinated. The traditional rules related to the interactive process and reasonable accommodations apply in this context, meaning that exceptions to providing reasonable accommodations include if: the accommodation would create an undue hardship to the employer; the employee cannot perform the essential job duties required with a reasonable accommodation; the employee cannot perform the job duties without the risk of danger to other employees.
Similarly, employees who wish to not obtain the vaccination on the basis of religious beliefs or practices must be provided with reasonable accommodation, unless it would create an undue hardship to the employer. However, the guidance also stated that “unless specifically requested by the employee, an accommodation related to religious creed is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public.”
On the other hand, the California Department of Fair Employment and Housing’s new guidance states that there is no obligation from an employer to reasonably accommodate employees whose opposition to be vaccinated is not related to a religious belief or disability. Additionally, the DFEH stated that employers may require employees to show “proof” that they have been vaccinated as part of the vaccine requirement because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, employers are advised to instruct employees to omit any protected medical information from their documentation prior to submission. Once the information is collected, employers must maintain records of employee or applicant vaccination as confidential medical records.
Although this guidance is specific to California, do not be surprised if many other states mirror this type of guidance in the weeks to come.
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://