This blog provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

With how disruptive the COVID-19 pandemic has been for all businesses; many employers are eager to get their workforce back to “normal” as soon as possible. This raises the question – can employers require employees to receive the COVID-19 vaccine? In short, the answer is yes, with appropriate justifications and reasonable accommodations for certain employees. The question, however, touches many areas of law and is unique to each employer. This blog analyzes a few major areas of law affected by a mandatory COVID-19 vaccine.

California Department of Fair Employment and Housing (“DFEH”)

Last month the DFEH updated its COVID-19 related guidance. In that guidance, the DFEH addresses that employers can require their employees to be vaccinated, so long as the employer adheres to the requirements of the Fair Employment and Housing Act (“FEHA”).

REQUIREMENTS:

1. Mandatory vaccination policies and practices must not discriminate against or harass employees based on a protected characteristic (i.e., religion or disability).
2. Employers must reasonably accommodate employees with disabilities. If an employee objects to the vaccination on the basis that he or she has a disability that prevents them from being vaccinated, the employer is required to engage in the interactive process with the employee and reasonably accommodate that employee.
3. Employers must reasonably accommodate employees with sincerely-held religious beliefs or practices. If an employee objects to the vaccination on the basis that he or she has a sincerely-held religious belief or practice that prevents them from being vaccinated, the employer is required to engage in the interactive process with the employee and reasonably accommodate the employee.
4. Employers must not retaliate against employees for engaging in protected activity.
5. If an employee resists mandatory vaccination absent a disability or sincerely-held religious belief or practice, no reasonable accommodation is necessary.

Equal Employment Opportunity Commission (“EEOC”) and the Americans with Disabilities Act (“ADA”)

According to the EEOC’s recent guidance, employers can generally require employees to receive a COVID-19 vaccination. However, the EEOC encourages employers to take certain precautions in mandating vaccines to avoid violations of the ADA and other disability laws.

The ADA permits employers to require vaccinations under certain circumstances. Specifically, the ADA allows an employer to have a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” 42 U.S.C.A. § 12113. Under this qualification standard, an employer may require all in-person employees be vaccinated, in order to avoid the “direct threat” of contracting or spreading COVID-19, provided there are no other reasonable accommodations the employer could adopt to prevent COVID-19.

But, even though an employer may require vaccines in some circumstances, there are caveats. Mandatory vaccines implicate two portions of the ADA:

1. Medical Examinations and Disability-Related Inquiries (42 U.S.C.A. § 12112(d)(4)(A))
2. Reasonable Accommodations (42 U.S.C.A. § 12112(b)(5))

For individuals refuse to get vaccinated due to sincerely held religious beliefs (which are covered under Title VII of the Civil Rights Act), the employer must provide reasonable accommodations unless it would pose “undue hardship” (means more than a de minimis cost to an employer’s business operation) to the employer. The EEOC states that “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for accommodations is based on a sincerely held religious belief.” In other words, employers should generally not question employees about their religion. However, employers may question the nature or sincerity of the employee’s religion if they have an objective basis for doing so. In such a case, employers may be justified in asking for additional supporting information.

The Occupational Safety and Health Act (“OSHA”)

In the past, OSHA has allowed employers to require mandatory vaccination in the H1N1 Flu context. But note, in 2009, OSHA issued an opinion letter in response to an employer’s questions about mandatory flu vaccinations. In its response, OSHA stated that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.” For this reason, employers should document all efforts they make to explore accommodations with an employee, and any undue hardships that explain why an accommodation could not be made, if applicable. These notes and records should be kept in a separate medical or accommodation file for the employee.

In Sum

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This blog is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  If you have any questions, feel free to contact us.