Frequently Asked Questions (FAQ) Concerning COVID-19 Vaccinations and California Employment Law
- June 29, 2021
- David Levy
- No comments
Can employers require employees to be vaccinated for COVID-19?
Yes, but employers must not violate the rights of employees with (1) disabilities under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, or (2) sincerely-held religious beliefs, practices or observances that prevent them from being vaccinated. If an employee cannot be vaccinated due to a disability or sincerely-held religious belief, the employer must engage in an interactive process with the employee to determine reasonable accommodations and, absent an undue burden, provide such accommodations.
Must employers require employees to be vaccinated for COVID-19?
Should employers draft written policies if they intend to require employees to be vaccinated for COVID-19?
Employers should have uniform, written policies concerning COVID-19 vaccinations and strictly follow those policies. If exceptions are made to those policies or employees are treated differently, an employer could be exposing itself to discrimination, retaliation and wrongful termination claims. Likewise, employers should inform employees of vaccination requirements and their rights (and the procedures) to seek exemptions for disabilities and sincerely-held religious beliefs.
Can employers refuse to allow unvaccinated employees with disabilities or religious objections from physically coming to the workplace?
If a reasonable accommodations are not possible, employers can refuse to allow unvaccinated employees with disabilities or sincerely-held religious beliefs from physically coming to work. However, based on those circumstances alone, employers should not terminate employees excluded from the workplace.
Can employers require proof of vaccination from employees?
Yes, but employers should treat the proof as confidential medical information and advise employees not to provide information concerning disabilities or medical information.
Do employers need to accommodate vulnerable employees even if they have already been vaccinated for COVID-19?
Yes, employers still need to engage in an interactive process to determine if particularly vulnerable employees that have been vaccinated need accommodations due to COVID-19.
Can employees refuse to return to work because they are afraid of COVID-19?
Can employers mandate that employees be vaccinated for COVID-19 given that the vaccines do not have FDA “approval” and have only been authorized under an “Emergency Use Authorization?”
Some employment attorneys argue that employers cannot mandate employees to be vaccinated for COVID-19 because the vaccines do not have FDA “approval” and have only been authorized under an “Emergency Use Authorization.” Among other differences, potential recipients of vaccines that are issued under an Emergency Use Authorization must be advised that they have the option to accept or refuse the vaccine. While this specific issue has not been resolved by California courts, there appears to be a growing consensus that COVID-19 vaccination mandates are legal despite the fact that the vaccines are only authorized under an Emergency Use Authorization. While this issue will become moot once the FDA approves one of the COVID-19 vaccines, employers mandating employees being vaccinated could still face lawsuits from employees challenging such mandates.