This article was originally published in the July/Aug 2021 issue of San Diego Lawyer Magazine.
By Dan Eaton
A California employer has a qualified right to require its employees to receive one of the three COVID-19 vaccines the federal Food and Drug Administration has authorized for emergency use.
According to the California Department of Fair Employment and Housing (DFEH) and federal Equal Employment Opportunity Commission (EEOC) non-binding guidance, workplace vaccination mandates are allowed as long as employees with medical conditions and disabilities that vaccination could complicate, and employees with bona fide religious objections, are properly accommodated. An employee’s generalized fear of a vaccine’s effects or effectiveness is not a legally protected justification for refusing an employer’s vaccination mandate.
Some legal commentators have argued that the emergency use authorization — and not full approval — of the vaccines available as of this writing preclude employers and other institutions from mandating vaccination. That appears to be a minority view. The EEOC takes no position on the question as beyond its jurisdiction, the DFEH guidance implicitly rejects it, and the position is untested in court.
Requiring Proof of Vaccination
An employer may not consider an employee “fully vaccinated” under California Division of Occupational Safety and Health Administration (CAL/OSHA) COVID-19 emergency temporary standards unless the employer has documentation that at least two weeks have passed since the employee received the required number of shots. The DFEH and EEOC both have said employers do not violate state or federal civil rights laws by requiring their employees to provide documentary proof of vaccination. Requesting proof of vaccination is neither a disability nor a genetic information-related inquiry. Proof of vaccination must be kept confidential and separate from an employee’s personnel file.
Among other things, the Health Insurance Portability and Accountability Act (HIPAA) prohibits health care providers and the like from disclosing protected health information, including vaccination status, without patient consent. The statute does not prevent an employer from requiring an employee to provide proof of vaccination.
Practical and Ethical Considerations
The EEOC suggests that “[a]s a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.” According to the agency, possible accommodations include requiring unvaccinated employees to “wear a face mask, work at a social distance from co-workers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally accept a reassignment.”
The legal question of whether an employer may mandate vaccination is different from the ethical question of whether an employer should mandate vaccination. Neither the DFEH nor the EEOC takes a position on that question. Most employers seem to be relying for now on strong encouragement, sometimes including financial incentives, to have their workplaces as fully vaccinated as possible.
The legal response to workplace issues raised by the pandemic has come almost entirely from executive action, not all of it legally binding. The coronavirus has moved faster than the speed of durable law, such as statutes and appellate rulings, to address it. The pandemic will cause legal aftershocks, including court rulings related to mandatory vaccination, long after it subsides.
Dan Eaton (eaton@scmv.com) is a partner with Seltzer Caplan McMahon Vitek. His practice focuses on defending and advising employers. Dan writes the biweekly Law at Work column in The San Diego Union-Tribune. He teaches business ethics and employment law courses at SDSU’s Fowler College of Business.