COVID Vaccines and the Workplace

California employers generally may require their employees to be vaccinated or regularly tested for COVID-19. Certain employers must impose these requirements. Most employers in California are subject to the Fair Employment and Housing Act, or FEHA, which entitles employees to reasonable accommodations based on their disability, medical condition, or religion. Although employers have considerable freedom to implement a wide range of vaccination or testing policies, FEHA prohibits discrimination based on race, age, and similar protected characteristics.

Employees Subject to Mandatory Vaccination

All public-sector and healthcare employers are mandated to require COVID vaccination or regular COVID testing for their employees. Private-sector employers with employees in “high-risk congregate settings” (such as skilled nursing facilities) are subject to the same mandate.

Other private-sector employers are not required to mandate employee vaccination, but they have broad freedom to do so because employment is generally “at-will.”

Example 1: Janice is a registered nurse at a hospital. Janice’s employer must require her to get vaccinated or submit to regular testing.

Example 2: Hakim is the activities coordinator at an assisted living facility. He works exclusively in the activities room, provides no healthcare services, and does not enter any part of the facility where healthcare is provided. Although he is not a healthcare worker, the activities room is a high-risk congregate setting. His employer must require vaccination or testing.

Example 3: Lisa owns a carwash with ten employees. She does not believe in vaccinations and does not require any of her employees to get vaccinated. Nine of them get vaccinated anyway, but one employee vocally refuses. His coworkers are upset and pressure Lisa to fire him. She refuses. Lisa is a private-sector employer. A carwash is not a healthcare facility and is not considered a high-risk congregate setting. She is not required to implement mandatory vaccination.

Fair Employment and Housing Act

The Fair Employment and Housing Act, (or FEHA) applies to all employers with five or more employees. Among other things, FEHA:

• Entitles employees to reasonable accommodations based on their disability, medical condition, or religion.
• Requires employers to engage in a “good-faith interactive process” to determine suitable accommodations if it cannot grant the requested accommodation.
• Prohibits discrimination against any employee based on a “protected characteristic”: race, religion, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.
• Prohibits retaliation against any employee who has requested an accommodation or complained about discrimination.

An accommodation is reasonable when it allows the employee to perform the essential functions of her job without causing undue hardship to the employer. Whether a hardship is “undue” depends on the size, resources, and nature of the employer. A large corporation will generally be expected to grant a wider range of accommodations than a small, family-owned business.

FEHA prohibits discrimination in the terms and conditions of employment. An employer may not determine who is required to vaccinate based on any protected characteristic. However, an employer may apply its policy to some employees and not others if the distinction is not based on a protected characteristic.

Example 4: Marcy is the human resources assistant at a large department store with 100 employees. Since the onset of the COVID pandemic, Marcy was one of a handful of employees who could perform their jobs remotely. The store is now requiring all employees to work on-site and get vaccinated. Marcy has a documented medical condition which could be exacerbated by the COVID vaccine. She requests that she continue to work remotely so that she puts neither herself nor others at risk. Her employer refuses, saying it would not be fair to other employees, and terminates Marcy. Marcy requested an accommodation for her medical condition. Her request was reasonable because it would enable her to perform the essential functions of her job without endangering coworkers or customers. Her employer likely violated the Fair Employment and Housing Act by terminating her rather than granting a reasonable accommodation.

Example 5: Joebert is the general manager at a family-owned movie theater with twelve employees. The owners have just announced mandatory vaccination. Joebert does not want to get vaccinated because of a rare heart condition. He requests to work from home. Joebert’s employer reminds him that his job is to physically supervise employees on-site. Joebert proposes that his employer invest in virtual reality goggles for all employees, which would allow him to interact with and supervise his subordinates. This would cost $50,000 and require extensive training. Joebert’s request is not reasonable because its great expense would impose an undue hardship on this small business. However, the employer must still engage in a good-faith interactive process to identify alternative accommodations. Joebert is also protected from retaliation for requesting the accommodation, even if what he asked for wasn’t reasonable.

Example 6: Monica is an engineer. Her employer requires regular COVID testing. Monica is a devout member of a religion that prohibits all but one of the COVID tests currently approved and available. The only test that is not prohibited is available at just one local clinic with limited hours. Monica requests slight modifications to her schedule so that she can visit the clinic during its limited hours. Her employer refuses without further explanation. Monica’s request for a religious accommodation was reasonable. If her employer thought otherwise, it was required to engage in a good-faith interactive process, which it failed to do.

Example 7: Bruno runs a small copy shop with two part-time employees. Bruno informs them that they must get vaccinated within 45 days or he will terminate their employment. One employee refuses because he fears he will have an allergic reaction. Bruno terminates him. Because Bruno has fewer than five employees, he is not subject to FEHA and is not required to accommodate the employee.

Example 8: Big Soda Corporation has both remote and on-site employees. It requires COVID vaccination or testing for all on-site employees, but not for remote employees. FEHA does not prohibit Big Soda from having a COVID policy that treats these groups differently. The distinction is not based on a protected characteristic.

Example 9: An employer divides its employees into “Tier 1”, who are required to vaccinate, and “Tier 2,” who are not required to vaccinate. Employees are automatically placed in Tier 1 if they are veterans, over 60, or known to be disabled. This policy unlawfully discriminates against employees based on their age, veteran status, and disability or medical condition.

The dedicated team at Spencer Young Law care about fair workplaces and safe communities. Whether you are an employer or an employee, we can help you understand your rights and responsibilities around COVID-19. Call an experienced employment lawyer at Spencer Young Law for a free consultation!