As many California employers re-opened their offices in recent months, and as case counts increased with the spread of the Delta variant of COVID-19, the issue of whether to institute mandatory COVID-19 vaccination requirements has risen to the forefront for employers and employees. Minami Tamaki has counseled non-profit organizations and other organizations on obligations and legal developments regarding COVID-19 vaccination policies.

The California Department of Fair Employment and Housing (“DFEH”) has issued guidance to assist employees and employers on vaccine policies and compliance with the Fair Employment and Housing Act (“FEHA”). Further details are available here. The “DFEH Employment Information on COVID-19” includes the following guidance:

1. Mandatory Vaccination Policy. A California employer may institute a mandatory vaccination policy as 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.
   
2. Exemption based on Disability. The FEHA requires employers instituting a mandatory vaccination policy to reasonably accommodate any employee with a disability. If an employee requests exemption from a COVID-19 vaccination requirement on the basis of disability, the employer must engage in an “interactive process” with the employee to attempt to identify a reasonable accommodation.
   
   Reasonable accommodations that an employer and employee might consider include allowing the employee to work from home, putting reasonable procedures and safeguards in place to enable the employee to work without endangering the employee or others, job restructuring, and job reassignment.
   
   If providing an accommodation to an employee imposes an “undue hardship,” the employer is not required to provide an accommodation to the employee. An undue hardship is defined as an action requiring “significant difficulty or expense.” Also, if the employee is unable to perform the essential duties of the job even with reasonable accommodations, or the employee cannot work without endangering the health or safety of the employee or co-workers, the employer may exclude the employee from the workplace.

3. Exemption for Sincerely Held Religious Beliefs. The FEHA requires employers to reasonably accommodate employees’ known sincerely held religious beliefs and practices. Therefore, if an employer imposes a mandatory COVID-19 vaccination policy, and an employee objects to vaccination on the basis of a sincerely held religious belief or practice, the employer must reasonably accommodate the employee. Employers should engage in an interactive process with the employee similar to the process required in the disability context (see above).
   
4. Documentation of Vaccination. Employers may ask employees or applicants for documentation of vaccination. However, because such documentation could include sensitive medical or disability-related information, employers should instruct these employees or applicants to omit any medical information from such documentation. Employers must maintain any records of employee or applicant vaccination as confidential medical records.

California employers are advised to follow local, state, and federal guidance on vaccinations in the workplace in order to ensure compliance with all legal obligations. For more information on COVID-19 regulation and developments, you may contact Minami Tamaki Coronavirus (COVID-19) Task Force members Sean Tamura-Sato, Lisa Mak, or Claire Choo online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal or medical advice. Information in this article may not constitute the most complete or up-to-date legal or other information. Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.