PREVENTING DISCRIMINATION IN A PANDEMIC « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles

PREVENTING DISCRIMINATION IN A PANDEMIC

California’s Expanded Guidelines
on Workplace Vaccination Practices

Closely paralleling national standards, California employers must balance COVID-19 health and safety guidelines with the required Fair Employment and Housing Act (FEHA) protections for those who seek accommodation for a physical or mental disability or religious conviction and practice.

To further help achieve this balance, the Department of Fair Employment and Housing (DFEH) has again updated its “DFEH Information on COVID-19” circular (March 4, 2021), offering new policy and protocols for vaccination-related health condition inquiries.

● Employers May Require Worker COVID-19 Vaccinations Subject to Anti-Discrimination and Anti-Harassment Protections:  While the DFEH is careful not to provide guidance “on whether or to what extent an employer should mandate vaccination within its workforce,” the agency cautions that management must respect disability- and religion-based objections if inoculation is to be required.

Thus, if an employer mandates workforce-wide vaccination and an employee objects on the basis of disability or a sincerely held religious belief or practice, management must engage that worker in a good faith interactive process to find a reasonable accommodation short of an undue hardship to the company’s operations.

The DFEH observes that reasonable accommodation is a fact-specific determination. Possible alternatives include whether the employee is able to work from home or whether reasonable worksite procedures and safeguards are feasible to enable work on site without endangering that employee or others. For a workplace where other prevention safeguards are already in place – social distancing, masks, etc. – such accommodation should generally not be difficult to achieve.

Employers, in Theory, Need Not Accommodate an Objection to Vaccine Safety:  The DFEH advises that if an employee objects to receiving a vaccination because he or she does not trust the safety of the vaccine, FEHA does not legally require the employer to reasonably accommodate that person.  However, the agency’s guidelines do not address the prospect that an employer who disciplines or terminates such an objecting worker might face a retaliation claim if that worker frames his or her complaint as his/her own valid health and safety concern.

The take-away is that employers should field any objection to vaccination with patience and respect and likely work with experienced legal counsel to resolve all good faith worker concerns.

An Employer Should Plan Its COVID Vaccination Screening Questions: The agency acknowledges that employers may generally ask workers to answer COVID-related questions, including screening arriving workers for symptoms.

Thus the DFEH advises that an employer administering an in-house vaccination program may ask employees pre-vaccination screening questions that could elicit disability information so long as the inquiry is “job-related and consistent with business necessity.” (The guidelines remind employers to maintain any vaccination records as confidential medical information.)

Yet, as the DFEH offers no examples of a proper “job-related” question in this context, management should deliberately plan just how pre-vaccination screeners will proceed, including posing all questions as job- and business-related and transitioning to the required interactive process if a worker raises a disability or religious concern.

Take away: employers should consult with experienced legal counsel before implementing procedures in this sensitive area.

See also:

For more information, including the adoption of workplace vaccination policy and protocols, contact Tim BowlesCindy Bamforth or Helena Kobrin.

Tim Bowles
March 11, 2021

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