May a California employer require its employees to be vaccinated against COVID-19? This is a question with much commentary yet little clarity. The answer depends on the circumstances.
California is one of the few states that does not require religious exemptions to vaccine mandates to be offered in certain circumstance, such as requiring vaccination for students before they enroll at school. The California Supreme Court has said repeatedly that a constitutional right to practice a particular religion does not trump another person’s right to not be sick. Courts have deferred to the legislature to determine whether a vaccine is safe enough to be required; they do not second guess judgement in that area.
Of course, California’s government has not mandated COVID-19 vaccines; instead, it has offered guidance. The Department of Fair Employment and Housing (DFEH), the main agency enforcing employment laws, issued a handout titled DFEH Employment Information on COVID-19, which details DFEH’s general guidance on COVID-19 issues in the workplace, including mandatory vaccination. In general, the DFEH asserts that under FEHA – the primary anti-discrimination law the DFEH enforces – employers who require their employees to be vaccinated must still comply with FEHA’s protections, including its religious exemptions. DFEH guidelines recite that FEHA requires employers to reasonably accommodate their employees’ sincerely-held religious beliefs or practices, including those which prevent these employees from being vaccinated against COVID-19.
But this exemption is not a blank-check for employees seeking to avoid vaccination. To claim the exemption, the religious belief or practices must be relatively well-known and traditionally considered as “religion.” Veganism, for example, has been rejected as a religious belief justifying vaccine exemption.
Courts will also inquire into whether a belief is sincerely held. If an employee has never refused a vaccination until now, that suggests his objection to a COVID-19 vaccine is based on something other than his sincerely-held religious belief, such as an objection to the efficacy or safety of the vaccine. According to the DFEH’s guidelines, employers do not need to accommodate an employee’s objection to receiving vaccines if the objection is based on safety or efficacy. Nor do employers have to accommodate sincerely held religious beliefs if it means the employee cannot perform his essential job functions. That is not a “reasonable” accommodation under FEHA.
However, the DFEH’s guidance suffers from a deep lack of clarity, because it expressly addresses FDA-“approved” vaccines, not vaccines that are FDA “authorized and recommended,” which the DFEH carefully distinguishes in the handout:
“The U.S. Food and Drug Administration (FDA) authorized and recommended three vaccines against COVD-19 infection, and the FDA may approve other vaccines for use in the United States. As safe and effective vaccines against COVID-19 infection become more widely available, employers may wish to encourage their employees to get vaccinated. Here, DFEH does not provide guidance on whether or to what extent an employer should mandate vaccination within its workforce. Rather, this FAQ and the following FAQs address how an employer complies with the FEHA if it decides to require employees to be vaccinated against COVID-19 infection with an FDA-approved vaccine.”
In other words, the DFEH guidelines say a lot, but provide little concrete help. The crux of the issue created by this paragraph is whether the DFEH is suggesting that employers may mandate a vaccine only if the vaccine is “FDA-approved,” or whether employers may lawfully requires one of the three COVID-19 vaccines, which currently are only “authorized and recommended.”
Finally, countless other legal issues and complexities are raised by employer mandates. For instance, whether the employer is a private entity or the government raises differing issues and legal complications. Further, the logistics of enforcing such a mandate are exceedingly complicated, as employers generally cannot control an employee’s off-duty conduct, and they are also limited to what type of medical information may be discussed or disclosed while at work. Both employees and employers should seek competent counsel with specific questions on these matters.