Mandatory Covid-19 Vaccinations: Important Considerations for California Employers
As the Delta variant of the COVID-19 virus continues to spread and vaccination rates continue to stall, many employers are asking if they can require all of their employees to be vaccinated to reenter the workplace. By now, it should be clear that it is legal for employers, both public and private, to implement such a policy. Indeed, President Biden recently enacted an executive order requiring all federal employees to be fully vaccinated or submit to weekly COVID-19 testing. Many courts have found that such policies are legal and that employers can fire employees who refuse to comply. However, any employer who is considering implementing such a policy should be sure to follow all federal and state guidance from the Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing (DFEH) to avoid legal issues and potential lawsuits from their employees.
First, the EEOC recently issued guidance which states that, while mandatory vaccination policies do not violate federal anti-discrimination laws, any such policy must comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. If an employee claims that he or she has a disability; or medical condition that prevents him or her from receiving the vaccine, the ADA requires the employer to engage in an interactive process with the employee to determine if the disability or medical condition can be reasonably accommodated. Similarly, for an employee who alleges that he or she is unable to be vaccinated due to a sincerely held religious belief, Title VII may require the employer to accommodate this belief to avoid a claim for religious discrimination. The California Fair Employment and Housing Act imposes very similar requirements under state law. Thus, if an employee refuses a vaccine for one of these reasons, employers should consider if an accommodation can be reached, such as allowing the employee to work remotely, if the employee is still able to perform his or her essential job functions.
Further, the DFEH recently issued guidance which states that if an employer is going to require vaccinations or mandatory testing, the employee must be compensated for the time spent traveling to the vaccination or testing facility as wages and pay for the cost of the testing or vaccine as a work expense. Fortunately, any employee can obtain a vaccine in the United States free of charge; however, employers should still be mindful of the requirement to compensate the employee for the work time spent getting vaccinated. Employers can also require employees to submit proof of vaccination and make copies of vaccination cards. These records must be safeguarded under HIPAA as private medical information as with any other employee medical records.
Finally, employers should consider they might encounter a significant percentage of their workforce who decline to be vaccinated but do not request an accommodation under the ADA or Title VII. This will place the employer in a difficult position to either; fire these employees or make exceptions to the policy. The former may cause the employer to lose talented employees in a difficult job market to find replacements and the latter could open the employer up to a discrimination claim for selective enforcement of its employment policies. For this reason, many employers are electing to require non-vaccinated employees to submit to weekly testing and masking requirements but stopping short of termination. Others are deciding to forego mandates entirely and choosing to focus on vaccine enticements such as cash bonuses or additional time off.
Many employers, trying to provide a safe workplace for their employees as the pandemic continues, are opting to implement mandatory vaccine requirements. Still, there are many legal considerations to enacting such policies and employers would be wise to consider them carefully.
Should you have any questions or wish to discuss this topic further, please do not hesitate to contact Sage Knauft or any other Walsworth attorney with whom you have a relationship.