As more individuals have the opportunity to receive the COVID-19 vaccine, many employers are asking the question regarding mandating versus encouraging employees to become vaccinated.
On March 4, 2021 the California Department of Fair Employment and Housing (DFEH) updated its COVID-19 guidance (view here), which addressed several questions related to vaccinations.
The DFEH stated that an employer may require employees to receive an FDA approved vaccination as long as the employer adheres to the Fair Employment and Housing Act (FEHA) by doing the following:
- Does not discriminate against or harass employees or applicants on the basis of protected characteristics;
- Provides reasonable accommodations related to disability or sincerely held religious beliefs or practices, and;
- Does not retaliate against anyone for engaging in protected activity (requesting a reasonable accommodation, etc.).
It is important to note that the DFEH is not providing guidance as to whether or to what extent an employer should mandate the vaccination, but rather, how an employee should comply with FEHA should the employer require the vaccination.
As with reviewing any accommodation, an employer must engage in the interactive process if an employee objects to vaccination and reasonably accommodate the employee.
Reasonable accommodations can include working from home or other measures put in place at the worksite that allow the employee to continue working safely. The interactive process should also be used when facing other objections to the vaccination. Job restructuring, reassignment or modifications of work practices should also be reviewed.
Many companies are encouraging voluntary vaccinations to their employees and have incentivized their employees to participate. Employers have paid for the vaccinations and the time required as incentives. California employers with more than 25 employees are now mandated to offer paid sick leave under the 2021 COVID-19 Sick Leave, for the purpose of attending a vaccine appointment or suffering side effects from receiving the vaccine. However, smaller employers may offer paid time as an incentive.
Employers should keep in mind that any incentive cannot discriminate against individuals who are not vaccinated because of medical conditions and/or religious beliefs.
Employers should review the DFEH guidelines and consult with HR professionals or a labor attorney prior to mandating vaccinations. Contact us today at 916-266-4370 or firstname.lastname@example.org to learn more about how we can support you with these and other HR related challenges.