San Jose Business Lawyers Blog
After California has fully reopened its economy on June 15, 2021, many California employers and employees alike have been wondering, “Can an employer compel its workforce to get vaccinated prior to returning to work?”
The short answer is, “Yes.” An increasing number of companies in California have mandated vaccination policies for their employees. Under federal and California state law, employers can require all or some of their employees to be vaccinated in order to return to work.
Under the Fair Employment and Housing Act (FEHA), employers are allowed to mandate vaccinations against COVID-19 as long as the decision to require an employee to be vaccinated harasses or discriminates against the employee. Employers should also keep in mind that they are required to provide reasonable accommodations related to employees’ disabilities and religious beliefs.
If you are considering implementing a mandatory COVID-19 vaccination policy for your employees, it is a good idea to consult with a Silicon Valley employment lawyer to make sure that your policy is in compliance with all applicable federal and state laws.
5 Things to Consider When Implementing Mandatory COVID-19 Vaccination Policy
As an employer in California, you should consider the following five things before compelling your workforce to get vaccinated in order to return to work:
1. Decide if All Employees Should Be Required to Vaccinate Against COVID-19
The first thing you should decide is whether all of your employees will be required to be vaccinated. If the mandatory vaccination policy applies to only certain categories of employees, make sure that your policy is not discriminatory based on protected characteristics to avoid potential discrimination claims.
2. Determine if You Will Pay Your Employees for the Time Taken to Vaccinate
Your employees will most likely miss time at work when receiving the vaccine against COVID-19 and recovering from side effects after receiving the shot. You should review all applicable laws to find out when and how you should pay your employees for mandatory vaccinations, lost wages, and the expenses associated with receiving the vaccine.
3. Provide Reasonable Accommodations
Employers can face penalties for failing to provide reasonable accommodations to employees, including when compelling the workforce to get vaccinated. For this reason, you should review and set up procedures for providing reasonable accommodations to employees.
Under California’s FEHA, employers with at least five employees must provide reasonable accommodations to employees with a disability. The only exception to the requirement is if the accommodation can cause an undue hardship.
For example, if an employee cannot get vaccinated due to a disability or religious belief, as a reasonable accommodation, their employer may allow the unvaccinated employee to return to work if they wear a face mask and maintain a social distance from coworkers. Alternatively, unvaccinated employees may be permitted to telework.
4. Decide What Type of Proof of Vaccination Your Employees Will Provide
If you mandate vaccination against COVID for all or certain employees, you need to determine what proof of vaccination you will require to check your employees’ vaccination status. According to the Equal Employment Opportunity Commission (EEOC), employers are permitted to request proof of COVID vaccination because asking for such evidence is not considered a disability-related inquiry.
5. Avoid Asking Intrusive Questions
If an employer refuses to get vaccinated, avoid asking intrusive questions as doing so could lead to a potential discrimination lawsuit. Do not ask your employees to provide more information than necessary when requesting proof of vaccination to avoid violating state and federal laws.
Speak with our California employment lawyers at Structure Law Group, LLP, to learn everything you need to know about employers’ rights and obligations when mandating COVID-19 vaccines. Call (408) 441-7500 or complete our contact form to get a case review.