Can employers mandate vaccines?
Generally, employers, both private and public, can mandate vaccinations for their employees, subject to an employee’s valid claims under the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Under the ADA, an employer may need to grant an employee a reasonable accommodation and exempt such employee from a mandatory vaccination based on a disability as defined by the ADA, i.e., a physical or mental impairment that substantially limits a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.
Similarly, Title VII requires an employer to offer a reasonable accommodation to an employee who refuses a vaccination due to a sincerely held religious belief, practice, or observance. In other words, the employee must have a “bona fide religious belief” that is sincere, meaningful, and occupy a place in the life of an individual similar to that filled by organized religions’ belief in a supreme being.
An employer need not, however, offer an accommodation to an employee under the ADA or Title VII if doing so would cause undue hardship.
Further, an employer’s ability to compel vaccination may also be subject to collective bargaining agreements; while the subject is not typically addressed in CBAs, there may exist language which restricts the employer from mandating vaccines and other such measures. Any bargained agreement would of course dictate the terms and frame any discussions about compelled vaccinations. While it should be noted that most of the municipalities for which our clients work have not, at this point, compelled vaccinations, they may certainly do so in the upcoming months.
Must employees respond if an employer asks if he or she has been vaccinated?
Assuming that an employer does not require that its employees get the COVID-19 vaccination, the question arises: Can the employer ask an employee if he or she has been vaccinated (and must the employee respond)? The answer to that question is “Yes,” so long as—in most situations—that is the end of the inquiry.
The federal EEOC guidelines permit an employer to ask an employee about his or her vaccination status, or even require an employee to show proof of vaccination, because it is not a disability-related inquiry that would implicate the ADA. However, if an employee states that he or she is not vaccinated, in most circumstances the employer may not ask any follow-up questions as to why; questioning an employee in this regard could be considered disability-related and, generally speaking, the ADA does not permit an employer to ask disability-related questions of an employee.
An employer may ask such questions, however, if they are “job-related and consistent with business necessity.” The EEOC explains that a disability-related inquiry may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”
Likewise, California’s Department of Fair Employment and Housing (“DFEH”) permits employers who do not mandate vaccinations to ask employees about their vaccination status, and permits employers to require proof of such status. Employees must be sure, however, to omit any medical information beyond vaccination status in the documentation presented.
Indeed, on May 20th Santa Clara County implemented a vaccine tracking requirement, mandating that all business and government employers determine and record the vaccination status of their employees—including remote employees who work in the County, and any contractors or volunteers working in their facilities—by June 1. Employees who refuse to disclose their vaccination status must abide by all rules that apply to unvaccinated employees.
While the CDC has issued new guidelines indicating that vaccinated individuals no longer need to wear masks either outdoors or inside, California has not yet loosened its mask mandate. Such loosening of restrictions will likely not be far off; in fact, as of the date this article was submitted, California has designated June 15th as the date set for extensive lifting of COVID restrictions. When that happens, employers who are not yet asking about vaccination status may start to do so, as they are required by law under Cal/OSHA regulations to maintain a “safe and healthful workplace.” Employees will be required to provide a response. Just keep in mind that additional questions that appear to implicate medical/disability status need not be answered, unless the employer can demonstrate an unvaccinated employee will pose a direct threat to the health and safety of others.
Rockne (“Rocky”) A. Lucia, Jr. Rocky is a founding principal at Rains Lucia Stern St. Phalle & Silver, PC (“RLS”. He has extensive experience in representing and advising labor associations on all matters, including contract negotiations, grievances, unfair labor practices, bargaining unit certifications and modifications, meet and confer rights, pension rights, retirement benefits, mediation and arbitration.
Gidian R. Mellk is an attorney in the Rains Lucia Stern St. Phalle & Silver, PC Litigation Group. Gidian has over 20 years of experience in civil litigation, specializing in union-side labor and employment law. She has spent her career focused on legal research and writing.