Updated: Mar 15, 2021
According to the LA Times, at least 18.3% of Californians have received at least one dose of a COVID-19 vaccine. While there is a rush to find available slots and even lines of people staking out vaccination sites in hopes of leftover doses becoming available, not everyone wants to be vaccinated.
More than half of Americans want to be vaccinated against COVID-19. Almost 32% of Americans were staunchly opposed to getting the vaccine in December. Misinformation, anti-vaccination sentiment, concerns about side effects, religious beliefs and disability are among the reasons people are hesitant or unwilling to be vaccinated.
While COVID-19 cases continue to decline, many employers are considering their role in vaccination progress. Companies are eager to open their doors while providing an environment safe for employees and customers. Some business owners want to make vaccination a requirement for new employees, or a condition of continued employment for current employees. Can businesses in California require their employees to be vaccinated? It's tricky.
All employers are subject to not only their state’s laws but also to federal oversight. The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance on COVID-19 and the workplace. In the past, the EEOC has recommended employers encourage vaccination, rather than requiring it. The recently released guidance does make it clear that employers can require employees to be vaccinated.
While companies can implement a vaccination requirement for their employees, there are exemptions, such as disability or religious beliefs. In these cases, an employer will likely be required to offer reasonable accommodation to the unvaccinated employee. For example, a company could allow an unvaccinated employee to work from home.
Employer-mandated vaccination may become more complicated if the workforce is unionized. In this case, employers may need to bargain with the unionized workers.
If California businesses want to require vaccination, they will also need to take state and local law into consideration. Guidance from the California Department of Fair Employment and Housing (DFEH) states that employers must provide reasonable accommodations for employees who do not want to be vaccinated due to disability or religious beliefs if requiring vaccination against COVID-19.
If an employee who refuses the vaccine does not have an exemption due to disability or religious belief, California employers are not required to provide them with accommodation. Employers are also able to put in disciplinary policies in place for employees who refuse the vaccine for reasons not protected by the Fair Employment and Housing Act (FEHA).
In short: It’s Complicated
Employer-mandated vaccines are not without precedent. For example, some employers have required the flu vaccine.
Questions of exemptions and the significant percentage of people hesitant or against receiving the COVID-19 vaccine make this a complicated issue. Companies are required by OSHA to provide a safe work environment, but a vaccine mandate still carries the risk of employees filing EEOC and Americans with Disabilities Act (ADA) claims.
While mandatory vaccination could increase the number of employees who get the shot, some employers are taking a different approach. Large companies, including Aldi, Instacart and Trader Joe’s, are offering their employees financial incentive to get vaccinated.
Employers thinking about mandatory vaccination for their employees may want to consider seeking legal advice to ensure any policies enacted are compliant with all federal and state laws. It is possible that federal and state regulations could evolve over time. Carefully watching for changes can help employers stay up-to-date and compliant. If you feel strongly about requiring vaccinations, but have an employee or a few who don't want them, it's best to consult with a business or employment lawyer. We can match you up with a specialist.