[Update: This article has been updated to reflect the new guidance from California’s Department of Fair Employment and Housing (“DFEH”) issued in March]
Many questions exist about the COVID-19 vaccine in terms of the workplace and employees. Here are five common questions employers face in terms of mandating the vaccine and requirements that apply to employees who have been vaccinated:
1. Can employers make employees get the vaccine?
According to the Equal Employment Opportunity Commission (EEOC), 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 Americans with Disabilities Act (ADA) and other disability laws. For example, while administering the vaccine itself is not considered a medical examination that would violate the ADA, certain medical-related questions can constitute impermissible “disability-related inquiries.” However, these limitations on asking disability-related questions do not apply when a third party administers the vaccination. Additionally, employers may offer the vaccination on a voluntary basis provided that the employee’s decision to fill out any screening disability-related questions is also voluntary.
California’s DFEH provided the following guidance that permits California employers to require employees to be vaccinated:
Under the FEHA, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so 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 or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).
2. What if, for religious or health reasons, they refuse to take it? What proof can employers ask for?
The biggest limits on a mandatory vaccine requirement are considering exemptions for individuals with sincerely held religious beliefs or health conditions that prevent them from receiving the vaccine. Sincerely held religious beliefs are covered under Title VII of the Civil Rights Act and the ADA governs medical conditions that make receiving the vaccine dangerous or inappropriate.
For individuals refuse to get vaccinated due to sincerely held religious beliefs, the employer must provide reasonable accommodations unless it would pose “undue hardship” 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.
For employees who cannot get vaccinated due to a disability, employers must also take steps to provide reasonable accommodations. These accommodations cannot be unduly burdensome to the employer. Some reasonable accommodations for these employees include allowing them to work remotely or adjusting the employee’s duties to prevent contact with others. An employer may exclude the employee from the workplace if having the unvaccinated person on the premises would post a “direct threat” to the health and safety of other workers. However, even if such a threat does exist, employers should analyze the facts of each employee’s case closely and make individualized determinations.
…the FEHA requires employers to reasonably accommodate employees with a known disability or sincerely-held religious belief or practice that prevents them from being vaccinated against COVID-19, as well as prohibits employers from retaliating against anyone for engaging in protected activity.
3. Can employees who received a vaccination no longer abide by social distancing protocols?
No. As California’s COVID19.CA.GOV website explains:
Even with a vaccine, you may still be able to spread COVID-19. It is important for everyone to continue using all the tools available to us to help stop this pandemic, like:
- Staying home and isolating from others when sick
- Wearing masks
- Washing hands often
- Social distancing and avoiding crowds
Together, COVID-19 vaccination and taking steps to protect yourself and others will offer the best protection from getting and spreading COVID-19. We need to understand more about the protection that vaccines provide before we change recommendations.
Also, the CDC has also cautioned against individuals who have received the vaccine from attending social gatherings if they have symptoms:
Fully vaccinated people should not visit or attend a gathering if they have tested positive for COVID-19 in the prior 10 days or are experiencing COVID-19 symptoms, regardless of vaccination status of the other people at the gathering.
4. If an employee has received a COVID-19 vaccine, can they refuse to get employer mandated COVID-19 tests?
No, even after receiving the vaccine, COVID19.CA.GOV sets forth that employers may still mandate that the employee take regular COVID-19 tests: “If your job requires it, you still need to get tested regularly, even if you had the vaccine”
5. Can employers ask for proof that the employee received the vaccine?
According to the EEOC, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry. Since people who have received the vaccine are given a card, it would be reasonable to ask for proof via this card. However, employers should not ask intrusive follow-up questions such as the reasons why the employee is not getting vaccinated since these questions may be considered disability-related and accordingly trigger ADA protections. Employers should also request that employees provide them no more information than necessary as proof of vaccination in order to avoid violations of other disability laws.
According to the DFEH, employers may ask the employee for “proof” of the vaccination:
Yes. 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, because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.