More Guidance on COVID Vaccines in the Workplace

Various government entities have been working overtime in the last six weeks to develop further guidance for business owners on all things COVID-19-related. From revised restrictions, re-opening guidelines and record-keeping obligations, the alphabet soup of government enterprise continues to dip its collective toe in the regulatory pool, quite frequently. In March, the California Department of Fair Employment and Housing (DFEH) issued new guidance relating to employer-mandated vaccination programs. Here is our take on some of the most frequently asked questions coming out of the new regulations:

Can California Employers Mandate Employees to Become Vaccinated Before Returning to Work?

Maybe. The latest DFEH guidelines looked suspiciously similar to the information posted by the U.S. Equal Employment Opportunity Commission (“EEOC”) at the end of December 2020. Under the latest DFEH guidelines, employers may require their employees to be vaccinated against COVID-19 prior to returning to the workplace, subject to several exceptions.

Among the most prevalent exceptions to the rule allowing mandatory vaccinations -- disability and religious accommodations must be made for those who voice a sincere and legitimate concern over receiving the vaccine. In those circumstances (including those employees who try to use these otherwise legitimate reasons as excuses for illegitimate objections), California employers are required to enter into the interactive process, required by the Fair Employment and Housing Act (FEHA) to determine what, if any reasonable accommodations may be available to that employee in lieu of receiving the vaccine prior to returning to work. Such reasonable accommodations are different for every employer.

Interestingly, the DFEH says that work-from-home arrangements (also known as “telework”) MAY BE an accommodation for the employer to consider, but that employers are not REQUIRED to make work from home options available if there is a legitimate business reason to deny such an accommodation. In other words, if in-person attendance is an essential part of the employee’s job duties (hopefully, spelled out succinctly in a well-written and accurate job description) the employer may be permitted to disallow work-from-home as a legitimate and reasonable accommodation.

It is important to note that the DFEH stated employers do not have to provide reasonable accommodations to employees who refuse vaccination on such as the safety of the vaccine or political beliefs.

If your business elects to require proof of vaccination, please be certain to have the employee provide you with a redacted copy of the certification, removing any confidential or sensitive medical information contained in the proof of vaccination. Also, like any other medical information in the control, custody or possession of the employer, proof of vaccination should be strictly limited to key personnel, and the proof of vaccination should be held in a secure location, to prevent unauthorized disclosure of confidential medical information.

Can California Employers Mandate Employees to Submit to Antigen/Antibody Testing Before Returning to Work?

With few exceptions, the answer is “no”. Employers are most certainly allowed to request that employees undergo viral testing to confirm a negative test result before returning to work after an extended period away (e.g. returning to the physical workplace, returning from vacation or business travel to high-risk areas, etc.). However, antibody or antigen testing has been determined to be an invasion of the employee’s privacy rights, and an employer cannot condition a return to work upon successful proof of antibodies/antigens. It is important to remember that an employer CANNOT require an employee to submit a negative viral test result for someone returning after being quarantined due to a workplace exposure to COVID-19 or infection. The CAL/OSHA emergency temporary standards issued in November 2020 specifically prohibit employers from requiring that an employee test negative before returning to the workplace in these circumstances.

How Much Time Can An Employee Take Away From Work If They Become Ill?

As discussed in our special edition Sidebar newsletter here, California imposed an obligation on employers with more than 25 employees, to provide a new, updated 80 hours of COVID-19 Supplemental Paid Sick Leave beginning on March 29, 2021. However, in certain circumstances, an employee may also be entitled to take extended leave under the California Family Rights Act (CFRA). Under CFRA, if an employee is unable to work because: (1) they are ill due to COVID-19; (2) they are caring for a CFRA-covered family member with COVID-19; or, (3) they suffered an adverse reaction to the vaccination, the employee may be entitled to take an additional 12 weeks of unpaid, but job protected leave. This extended care is only available if the employee (or eligible family member) requires inpatient care, treatment under the supervision of a health care provider, is hospitalized, or the underlying viral infection leads to other substantial medical conditions (e.g. pneumonia).

This can be a dangerous situation if employers are not careful, as denial of CFRA leave to an otherwise eligible employee can result in liability under the Fair Employment and Housing Act for failing to provide a reasonable accommodation based upon a disability!

What Can I Legally Ask My Employee About an illness?

The DFEH clarified that an employer may ask its employees why they need to be away from work, and/or why they were absent. However, employers are required to abide by all privacy restrictions and requirements – including HIPPA – and must maintain the confidentiality of any employee illnesses and/or medically related reason for absences. These inquiries into employee health should be handled by a well-trained HR professional, or someone who understands the privacy requirements under state and federal laws.

For more information on the latest guidelines from the DFEH, visit https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Employers should make sure to stay abreast of these changes, because the penalties for non-compliance can be steep, and the liability associated with employee lawsuits can be life-or-death for small and mid-size businesses still reeling from the effects of the shutdowns. Now, more than ever, its important for your business to have a trusted advisor to help you navigate through the new regulations. Stay tuned for more updates on California’s return to “the new normal” workplace.