On March 4, 2021, the Department of Fair Employment and Housing (“DFEH”) updated the COVID-19 Frequently Asked Questions section of its website (“FAQs”) to provide additional guidance to employers on issues related to the COVID-19 vaccine.
Importantly, although the DFEH stated that employers may require their employees to be vaccinated, employers must provide reasonable accommodations related to disabilities or religion, which require
carefully weighing the risks applicable to each industry and employer specific factors. Additionally, just yesterday, the Governor signed SB 95 to bring back California’s COVID-19 Supplemental Paid Sick Leave starting March 29, 2021.
VACCINE UPDATE
Can an Employer Make the Vaccine Mandatory?
An employer may require its employees to get vaccinated as long as the employer:
- does not discriminate against or harass employees on the basis of a protected characteristic;
- provides reasonable accommodations related to disability or religious beliefs, and 3. does not retaliate against an employee for engaging in protected activity.
More on these significant exceptions are set forth below.
Addressing Disability- or Religious-Based Objections
Under the Fair Employment and Housing Act (“FEHA”), employers who mandate the vaccine for their employees must be prepared to respond to disability- or religious-based objections appropriately, such as by providing reasonable accommodations.
Accommodations may include allowing the employee to work from home or, in the case of a religious-based objection, job reassignment to eliminate the conflict between religious belief and the vaccination
requirement. However, if the employer can show that an accommodation imposes an undue hardship, the employee is unable to perform essential duties even with reasonable accommodations, or the employee cannot perform essential duties in a manner that would not endanger the health of the employee or others even with reasonable accommodations, then “the employer may exclude the
employee from the workplace.” Note, this analysis needs to be carefully considered and will depend on the industry involved, the size of the employer, and the job functions of the employee, among other factors.
What If an Employee Does Not Want to Take the Vaccine?
The DFEH states that “the employer is not legally required by the FEHA to reasonably accommodate the employee” without a disability- or religious-based objection. Importantly, an employer must proceed with caution in weighing the consequences and risks associated with conditioning employment on getting the vaccine.
Can an Employer Ask for Proof of Vaccination?
An employer is permitted to request proof of vaccination from its employees. Please note, that however, because such documentation can include disability-related medical information, employers should:
1. instruct their employees to omit any medical information from such documentation; and
2. maintain the documentation as a confidential medical record.
NEW COVID-19 SUPPLEMENTAL PAID SICK LEAVE REQUIREMENTS
Effective March 29, 2021, employers with more than 25 employees must provide up to 80 hours of COVID-19 related paid sick leave to covered employees. It is important to note that this paid leave applies retroactively from January 1, 2021, to September 30, 2021.
Along with the new mandated paid leave, the California Labor Commissioner’s Office is also requiring that covered employers post and distribute a notice (CLICK HERE) regarding the renewed COVID-19
Supplemental Paid Sick Leave to employees before March 29, 2021.
KEY TAKEAWAYS
- There are a number of risks associated with conditioning employment on getting the COVID-19 vaccine. As such, subject to the particular industry, we generally recommend that, instead of
mandating the vaccine, employers strongly encourage it. - Starting March 29, 2021, employers with more than 25 employees must retroactively provide up to 80 hours of COVID-19 paid sick leave to employees.
- Covered employers must also comply with the Labor Commissioner’s COVID-19 paid sick leave notice requirement before March 29, 2021.
If you have any questions on how to develop a COVID-19 vaccination policy or any other California employment law matter, please feel free to reach out to us at NFC West at 619.292.0515. To find out more about COVID-19 issues in the workplace and 2021 hot topics in employment law, be sure to attend NFC West’s Hot Topics complimentary virtual seminar on April 28, 2021 from 12:00 PM to 1:30PM PST.