Can Private Employers Require COVID-19 Vaccines?
With the State of California reopening on June 15, 2021, we’ve received several questions about whether or not employers can require their employees to get the COVID-19 vaccine before returning to work.
While this is a new and evolving area of law, I’d like to share a few things we DO know as it pertains to private employers.
Please note, this article is only speaking to private employers, not federal entities or employees.
Can a private employer require employees to get the COVID-19 vaccine?
The short answer is yes. In the latest guidelines published by the California Department of Fair Employment and Housing (DFEH), employers are allowed to require employees who are returning to the workplace to get the COVID-19 vaccine and provide proof, unless an employee objects on the basis of disability and/or sincerely-held religious beliefs.
In these two scenarios, an employer must engage in an interactive process to reasonably accommodate the employee.
What does it mean to reasonably accommodate an employee?
Depending on the company and the employee’s job assignment, reasonable accommodations could include, working from home or telecommuting, minimizing contact with other employees, providing PPE or a socially distanced workspace for the employee, or offering a leave of absence.
There are a few exceptions when it may not be possible for an employer to offer reasonable accommodations, and those include:
- If the accommodation would pose an undue hardship to the employer
- If the employee would not be able to perform their essential job functions with the accommodations
- Or if sufficient accommodations cannot be met in order to keep other employees safe
What if an employee disagrees with or has other objections to the vaccine?
According to the DFEH, unless an employee has a disability reason or sincerely-held religious belief against it, an employer is NOT required to provide reasonable accommodations.
This means, even if an employee opposes the vaccine, an employer can still mandate they return to the workplace and require them to be vaccinated. There is nothing that requires an employer to allow this type of employee to continue working from home.
Can an employee be terminated for refusing to get vaccinated?
If the employee is refusing to be vaccinated due to a disability or sincerely-held religious belief, then NO! An employer must engage in an interactive process to reasonably accommodate an employee in either of these situations.
If the employee is refusing for any other reason, an employer can exercise their rights in an at-will state to terminate the employee. It is recommended the employer document the reason stated by the employee in an attempt to avoid any future complications or claims of retaliation.
Can an employer encourage employees to get vaccinated?
Instead of requiring the vaccination, some employers may choose to encourage their employees to get the COVID-19 vaccine through education and incentives.
While this can be an excellent idea, there are some specifics as to how it should be handled to avoid conflicts or future legal issues.
For instance, if employers would like to educate employees on the benefits of vaccination, provide them with links to resources, etc., it’s best to include it as part of an existing voluntary company-wide Health & Wealthness program.
In regards to incentives, employers are welcome to offer employees reimbursement for related costs, time-off to get the vaccine, or small prizes and gifts such as $5 or $10 gift cards. Anything larger than that could be considered coercion.
Like most contests, for those who are unable to be vaccinated (due to disability reasons or religious beliefs) there should be a way for them to obtain the incentive as well.
How does an employer handle proof of vaccination?
Since the DFEH has stated vaccines are not medical examinations, employers may legally require employees to provide proof of vaccination; however, they encourage employers to instruct employees to remove any protected or sensitive medical information before submitting it to the employer.
An employer should treat these as medical records and keep them stored confidentially for the appropriate length of time.
What should a vaccination policy include?
If you’re an employer looking to create a vaccination policy, we suggest you speak with your legal advisor, or contact our office to schedule a consultation.
In general, it’s recommended that a vaccination policy include the following:
- Whether the employer is requiring employees to be vaccinated or if it is voluntary
- Who the policy and/or vaccination requirements apply to
- Any time off, reimbursement, or incentives employer will provide to employees receiving the vaccine
- Instructions on how employees provide proof of vaccination
- Options and/or consequences for employees choosing not to be vaccinated
- Who the employee should contact with questions, objections, and/or the need for reasonable accommodations
- Mention that the policy remains in place until changed by the employer
It is important to note that it is not recommended for employers to administer the COVID-19 vaccine to employees or to get otherwise involved with the process.
If you have questions, are an employer looking to implement a vaccination policy, or an employee who thinks you’ve been wrongly treated due to your vaccination views, please speak to your legal advisor or reach out to our office.
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