With more vaccines now available, the state Department of Fair Employment and Housing (DFEH) this month released additional guidance on workplace vaccination procedures and other matters related to COVID-19.
The guidance in large part is consistent with federal policies, professor Thomas Lenz, a lecturer at USC Gould School of Law, told the Northern California Record.
“I think the main thing is consistency to the extent that if an employer requires vaccines, to avoid infringing on potential exceptions with regard to disability, race, age, gender, and religious beliefs and practices,” Lenz said.
The DFEH notes it does not provide guidance on whether employers should mandate vaccination for its employees.
“Rather, this FAQ and the following FAQs address how an employer complies with the FEHA [California Fair Employment and Housing Act] if it decides to require employees to be vaccinated against COVID-19 infection with an FDA-approved vaccine,” the guidance states.
The DFEH intent is to provide clarity and guidance to employers and employees but due diligence is essential, said Lenz, who is also a partner handling labor and employment law at Atkinson, Andelson, Loya, Ruud & Romo.
“Like so many things during the pandemic, there are different levels of governmental regulation as the situation evolves,” Lenz said. “Guidance doesn’t have the force of law, but depending how an agency interprets the law, it’s possible a court or people interpreting the law in a different setting could take a different view.”
It’s incumbent on the employer to conduct a meaningful, interactive process in order to prevent discrimination of a protected class, he said.
“A court would look to see if employers have treated people differently in protected categories,” Lenz said. “The guidance is not saying do or do not vaccinate, but if you do require it, don’t discriminate.”
Businesses requiring vaccines should pay attention to the details and take steps to protect themselves against potential liability, Lenz added.
“It’s a reminder the issues from the pandemic are being regulated by a number of different laws – federal and state – and if issues arise, courts will be called upon to harmonize,” Lenz said.