The Department of Fair Employment and Housing (“DFEH”) is responsible for enforcing the California Fair Employment and Housing Act (“FEHA”), which prohibits California employers from discriminating against employees based on certain protected characteristics, including disability. The FEHA also mandates that employers engage in the interactive process with employees and provide reasonable accommodation to employees with statutory disabilities so that they can perform the essential functions of their job. Many of the DFEH’s responses to frequently asked questions (“FAQs”) are consistent with the U.S. Equal Employment Opportunity Commission’s responses to the same or similar questions.. On March 4, 2021, the DFEH updated its website page to include answers to some of the FAQs about vaccinations. Below are some key provisions of the revised FAQs
Employees may be mandated to receive vaccination.
The DFEH confirms that employees can be mandated by employers to receive an FDA-approved vaccination without violating the FEHA so long as their employer reasonably accommodates the employees’ disabilities and sincerely-held religious beliefs or practices.
Employers must engage in the interactive process and provide reasonable accommodations for both disabilities and sincerely-held religious beliefs.
Similarly, the DFEH confirms that employers must engage in the interactive process with employees who have a disability-related reason or sincerely held religious belief not to be vaccinated. The FAQs also emphasize that the employer must determine the availability of a reasonable accommodation on a case-by-case basis. In addition to working from home as a reasonable accommodation for disability-related reasons, the DFEH suggests that employees consider reasonable safeguards and procedures with their employers that might be feasible to put into place so that employees could work at their worksites without endangering themselves or other employees and third parties.
Employees who object for reasons not related to disability or religion are not entitled to reasonable accommodation.
The FAQs state that the FEHA does not require employers to reasonably accommodate employees who refuse to be vaccinated for reasons that do not relate to a known disability or sincerely-held religious belief or practice.
Employees may be subject to discipline for refusal to be vaccinated.
The FAQs also provide that employees who refuse to be vaccinated may be subject to discipline, so long as the discipline is not retaliatory. For example, an employer may not discipline an employee for requesting a reasonable accommodation related to his or her known disability or sincerely-held religious belief or practice. Likewise, the FAQs reiterate that employees cannot be subject to retaliation for claiming that “the employer’s vaccination policy intentionally discriminates on the basis of race, national origin, or another protected characteristic, or has a disparate impact on a protected group.”
Employees may be required to provide proof of vaccination.
The DFEH also states that employees may be required to provide their employers with proof of vaccination. The employer, however, must maintain that information as a confidential medical record.
For more information, please visit the DFEH’s FAQs page.
