How business owners are dealing with required vaccination for their employees
Since the state of California announced its first round of the vaccination process, which includes essential workers, a lot of business owners have been questioning what are the boundaries regarding the required vaccination of their employees.
On March 4, 2021, the California Department of Fair Employment and Housing (“DFEH”) updated its COVID-19 related guidance. In addition to addressing whether an employer may ask about symptoms, take employees’ temperatures, and require the use of personal protective equipment among other things, the DFEH addresses a question that has been top of mind for many California employers: Can employers require their employees to be vaccinated?
The short answer is yes, so long as the employer adheres to the requirements of the Fair Employment and Housing Act (“FEHA”).
Nonetheless, employers cannot discriminate against or harass employees based on protected characteristics, including but not limited to, religion and disability. But it also requires reasonable accommodation for employees with known disabilities.
Therefore, 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 an interactive process with the employee and reasonably accommodate that employee. That may include:
· the employee working from home, or
· the employer implementing safeguards at the worksite to enable the employee to work without endangering the employee or others.
If the employee cannot perform his or her essential duties even with the reasonable accommodation, or if the employee cannot perform his or her essential duties without endangering the health or safety of the employee or others even with the reasonable accommodation, then the employer may exclude the employee from the worksite.
The Act also requires the accommodation for employees with known sincerely-held religious beliefs and practices. Therefore, 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 an interactive process with the employee. And, similar to responding to a disability, if the accommodation imposes an undue hardship on the employer, the employer may exclude the employee from the worksite.
In opposition to that, if an employee resists mandatory vaccination absent a disability or sincerely-held religious belief or practice, No Reasonable Accommodation is necessary.
Although the fact that employers have limited options, asking employees for proof of the mandatory vaccination does not fit the protection characteristics. That said, you as an employer can ask for proof of vaccination, as long as any record of it is maintained as a confidential medical record by you.
Source 文章來源: https://www.natlawreview.com/article/dfeh-issues-guidance-to-employers-regarding-mandatory-covid-19-vaccination-policies