As noted in our most recent update, the California Department of Fair Employment and Housing (DFEH) has updated its COVID-19 guidance for employers.  The updates concern many of the issues that employers have grappled with since the onset of the pandemic.  For example, the guidance addresses such questions as whether employers can legally require COVID-19 screening, testing, and vaccination.  The recent guidance replaces prior guidance that the DFEH issued on March 20 and July 20, 2020.  While employers should carefully read through the entire guidance, we have summarized it here:

• General information – Civil rights laws are still in effect during a pandemic.  In other words, the pandemic does not justify discriminating, harassing, or retaliating against applicants, employees, or other individuals on the basis of a protected characteristic (such as medical condition, age, and religious beliefs). 
• COVID-19 inquires and protective equipment – Employers can screen employees for COVID-19 symptoms, including asking employees whether they are experiencing COVID-19 symptoms, taking employees’ temperatures before allowing them to enter the workplace, requiring employees to submit to COVID-19 viral testing (but not antibody testing), and asking employees why they have been absent from work.  Employers can also require employees to wear protective equipment (e.g., face masks, gloves, etc.); however, an employee with a disability might be entitled to a reasonable accommodation.
• Employees with COVID-19 symptoms or infection – Employers can exclude from work employees that are experiencing or displaying symptoms of, or that have tested positive for, or been diagnosed with, COVID-19.  Note, however, that while the DFEH’s guidance indicates that employers may use “a symptom-based, time based, or a test-based strategy” to return employees to work, that is inconsistent with Cal/OSHA’s guidance which encourages employers to use time- and symptom-based approaches, but not a test-based strategy.

• As it concerns informing employees of positive cases in the workplace, employers must maintain confidentiality and not disclose the identity of positive cases (except when required by local public health authorities).  The DFEH guidance recommends using the following guidance:

“[Employer] has learned that an employee at [location] tested positive for the COVID-19 virus.  The employee received positive results of this test on [date].  This email/text/letter is to notify you that you have potentially been exposed to COVID-19 and you should contact your local public health department for guidance and any possible actions to take based on individual circumstances.”

• Job-protected leave – COVID-19 may qualify as a “serious health condition” for purposes of unpaid job-protected leave under the California Family Rights Act if the particular employee’s condition meets that definition; i.e., inability to work for 3 days and continuing treatment by a doctor, being admitted to the hospital, etc.
• Reasonable accommodations for employees with a disability / vulnerable populations – Employees with underlying disabilities are entitled to a reasonable accommodation if unable to come to work due to COVID-19.  Whether an illness related to COVID-19 is a disability is a fact-based determination.  If it is, the employer must engage in the interactive process to determine if there is a reasonable accommodation for the employee.  There is no particular age that entitles an employee to a reasonable accommodation.
• Vaccination – Employers can require employees to get an FDA-approved vaccination against COVID-19 regardless of whether an employee feels that the vaccine is not safe.  However, employers must provide reasonable accommodations for employees with disabilities or sincerely-held religious beliefs or practices.  Further, employers must not retaliate against employees for engaging in protected activity such as requesting a reasonable accommodation.

• Thus, if an employee refuses to comply with an employer’s vaccination requirement, the employer will need to determine what the employee’s grounds are for objecting to vaccination.  If the employee’s grounds are related to an underlying disability or religious belief, then the employer must consider whether there is a reasonable accommodation that would enable the employee to work without endangering the employee or others in the workplace.  In this context, one thing to note is that “unless specifically requested by the employee, an accommodation related to religious creed is not considered reasonable if such accommodation results in the segregation of the individual from other employees or the public.  If the employer shows that an accommodation imposes an undue hardship, the employer may exclude the employee from the workplace.”

What This Means for Employers:

The DFEH’s new guidance confirms that employers can require COVID-19 screening, testing, and vaccination among employees (provided that employers are careful to consider reasonable accommodations for employees’ disabilities and sincerely-held religious beliefs).  Ultimately, employers should continue to closely follow Cal/OSHA’s ETS while keeping in mind the need to engage in a timely interactive process with employees with disabilities or sincerely-held religious beliefs that are in conflict with an employer’s COVID-19 policies.

If you have any questions, please do not hesitate to contact us.

Patrick S. Moody

Barsamian & Moody

www.theemployerslawfirm.com

Off.: (559) 248-2360

Cell: (559) 285-1438

Email: PMoody@TheEmployersLawfirm.com