Should Employers Mandate Employees Be Vaccinated Against COVID-19?

California’s Department of Fair Employment and Housing (“DFEH”) released new guidance that permits California employers to proceed with mandatory vaccination programs. On March 4, 2021, the DFEH updated its COVID guidance and now opines that “[u]nder the [Fair Employment and Housing Act], an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).”

The DFEH advises that an employer is not required to accommodate an employee who refuses vaccination given a general belief that the “vaccine isn’t safe”, without a sincerely held religious belief or disability. Thus, an employer may restrict an employee’s ability to work, unless one of the two exceptions applies. The Guidance also provides information on the gathering of medical information related to the vaccination, depending on whether the vaccination program is administered by the employer or by a third-party.

Given the DFEH guidance there is a strong argument that employers can require vaccination of an employee when job-related and consistent with business necessity but must discuss reasonable accommodations with employees when there is a potential conflict between public health and religious practice and/or an employee disability. It is a business decision whether to mandate employee vaccinations, but, before you do be sure to consult with your employment attorney.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.