Q: MY work requires personal interaction with several people on a daily basis. We are getting back to the worksite after working from home for over a year. My employer sent a company-wide memo saying that employees must be vaccinated to return to work. I am not sure I want to get the vaccine. Can my employer force me to get vaccinated?
A: The short and general answer is “yes.” But there is more. California’s Department of Fair Employment and Housing (“DFEH”) is following guidance outlined by the Fair Employment and Housing Act (“FEHA”) regarding vaccinations. Such guidance essentially states that an employer’s vaccination requirements must not discriminate against employees based on a protected characteristic, such as disability or religion. For employees returning to workplaces and being required to be vaccinated, the following information should be useful:
- Employees with a disability or medical condition may request reasonable accommodation to be exempt from vaccination.
If an employee has a health issue or a disability that prevents them from being administered a vaccine, the employee must notify the employer of this and request reasonable accommodation. An employer is required under the law to reasonably accommodate an employee’s disability or medical condition. Once the employer is notified about the employee’s disability or medical condition that prevents them from being vaccinated, the employer is required to engage the employee in an interactive process to determine what reasonable accommodation may be provided to the employee. The employee may be asked to provide the employer with a doctor’s note containing any limitations and possible accommodations. Reasonable accommodation may include providing personal protective equipment, allowing remote work, or granting leave of absence.
- Employees with a sincerely-held religious belief or practice may request reasonable accommodation to be exempt from the vaccination.
Religious beliefs or practices are protected under the law. If an employee’s sincerely-held religious beliefs and practices prevent them from being vaccinated, the employer is required to engage in interactive process with the employee and determine reasonable accommodation for that employee. Aside from those already mentioned, reasonable accommodation in this instance may also include assigning the employee to a different position or location that would prevent the risk of the employee contracting a COVID illness.
- Employees who request reasonable accommodation must not be retaliated against.
Requesting reasonable accommodation due to a disability, medical condition, or a sincerely-held religious belief or practice, is a protected activity. “Protected activity” also includes complaints or opposition to conduct, policy, or practice the employee “reasonably” and in “good faith” believes to be unlawful, even if the conduct is not actually prohibited under the law. An employer cannot retaliate against an employee by subjecting an employee to adverse employment action (i.e., discipline, demote, or terminate an employee) for engaging in protected activity.
- Employees must be compensated for the time spent obtaining an employer-mandated vaccination.
The time spent for testing or vaccination, including travel time, is considered “hours worked.” If the employer requires an employee to obtain a COVID-19 test or a vaccination, or if the test or vaccination is required for a job, the employer must pay for the costs of the test or vaccination as a reimbursement for necessary business expenses.
Given the above, the employee may not be allowed to return to the workplace if: a) no reasonable accommodation may be found without imposing an undue hardship on the employer; b) the employee cannot perform their essential duties even with reasonable accommodation; or c) the employee cannot perform their essential duties without endangering the health or safety of themselves and others even after reasonable accommodation.
* * *
The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is a past Presidential Awardee for Outstanding Filipino Overseas.]