Employers may choose to require employees to obtain the COVID-19 vaccine. According to both the Equal Employment Opportunity Commission (EEOC) and The State of California Civil Rights Department (CRD), employers can implement a mandatory vaccination program for their employees as part of the employer’s health and safety program to combat COVID-19 in the workplace.
Customize the grey text in the template below according to your practice policy. A copy of the signed acknowledgment and accompanying documentation should be kept in the employee’s separate confidential personnel record.
Employers in health care settings have the right to establish legitimate health and safety standards, policies, and requirements so long as they are job-related and consistent with business necessity.
Policies mandating vaccinations are more likely to be appropriate for employers in the health care industry. But legal complications, including the potential for side effects from the vaccine and the need to consider religious objections, can make encouraging and facilitating employee vaccination a better option for businesses than requiring it.
Even if an employer’s vaccination policy is mandated to meet state and county requirements or qualifies as a legitimate health and safety requirement for the business, under certain circumstances some employees may nonetheless be exempt from complying.
An employee may be exempt from complying with a mandatory vaccination policy if they have a qualifying disability or religious belief under the federal Americans with Disabilities Act (AwDA) or State of California Civil Rights Department (CRD) in California which prevents them from safely receiving the vaccine.
A request to be excluded from a vaccination requirement as an accommodation, whether due to disability or sincerely held religious-related concerns, will require an individualized assessment for each objection. At a minimum, an employer must engage in an interactive process with the objecting employee to determine if they can provide the employee with a reasonable accommodation that does not pose an undue hardship for the employer.
While engaging in the interactive process, employers must balance the mandatory vaccination policy with health and safety reasons with providing reasonable accommodation to those with covered disabilities and sincerely held religious beliefs.
When an employer receives a request from an employee to be exempt from the employer’s mandatory vaccination requirement for a disability-related reason, an employer may require verification from a health care provider that the individual has an actual disability and can require the employee to provide disability-related documentation that substantiates the employee’s need for an accommodation as a result of that disability.
For religious accommodations, the definition of religion is broad and protects beliefs and practices with which the employer may be unfamiliar; the employer should ordinarily assume that an employee’s request for religious accommodation is based on sincerely held religious beliefs.
Employers who implement a mandatory vaccine policy should report any employee adverse reaction to the vaccine to their worker’s compensation carrier. Employers who have further questions or concerns about an employee’s refusal of a mandatory vaccination should seek advice from CDA Practice Support or an employment law attorney.
For an employee who is either unvaccinated or has incomplete vaccination, reasonable accommodation may be to require the employee to wear a surgical face mask at all times. When possible, the practice may allow an employee to work a modified shift or, if feasible, be given the opportunity to telework. Voluntary use of a respirator is an option for an unvaccinated employee.
Employees who are not vaccinated because of pregnancy may be entitled under Title VII to adjustments to keep working if the employer makes modifications or exceptions for other employees. These modifications may be the same as the accommodations made for an employee based on disability or religion.