The U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance that under federal law employers generally may force employees to get COVID-19 vaccinations. Conceivably, state lawmakers could outlaw mandatory vaccinations in their respective states, but that seems highly improbable in California. It appears that as of the publication of this piece, no state in the U.S. has passed such a law yet.
Consistent with the EEOC, California’s Department of Fair Employment and Housing (“DFEH”) also issued guidance that it is generally allowable under California state law for employers to require employees in California to get a COVID-19 vaccination. The United States’ and California’s approval of mandatory COVID-19 vaccinations in the workplace rests on two rationales.
First, an employee getting a vaccine in it of itself does not implicate the employee’s legal protections with regards to medical examination, invasion of confidential medical information, medical conditions, genetics, or disabilities. Second, to the extent that an employer’s mandatory employee COVID-19 vaccination program or policy requires a medical examination or inquiry, an employer generally may mandate that an employee undergo a medical examination when it is “job-related and consistent with business necessity.” The argument would be that medical examinations related to COVID-19 vaccinations are job related and consistent with business necessity because employees would be unable to perform essential duties without endangering the health and safety of themselves and others in the workplace without having a COVID-19 vaccination.
As far as anti-discrimination laws are concerned, it appears that it is probably lawful for employers to actually discipline an employee for refusing to get COVID-19 vaccinated, but an employer cannot discipline, and must provide reasonable accommodations to, an employee who refuses to get vaccinated because of a disability or a sincerely held religious belief. Nevertheless, an employer still does not have to employ a COVID-19 vaccine refusing employee if it would cause the employer an undue hardship, the employee could not perform essential duties even with reasonable accommodations, or the employee would endanger the health and safety of the employee or other people even with reasonable accommodations. However, such a finding would require a fact intensive analysis on a case by case basis. Finally, an employee probably does not have a legally protected right to refuse to vaccinate against COVID-19 because the employee merely believes the vaccine is not safe, disagrees with the vaccination mandate, etc.
(See Link(s): EEOC COVID-19 Guidance; DFEH COVID-19 Guidance)