Newsletter – May 2021
Can Employers and Event Organizers Require COVID-19 Vaccination?
With wide availability of the COVID-19 vaccine and mask mandates loosening nationwide, employers and event organizers are beginning to plan indoor activities. Because many people have received the vaccine and because of its effectiveness, an employer or organizer may decide to require that workers or attendees receive the vaccine in order to participate (or else be required to wear a mask and social distance). This decision may draw questions about legality from employees and attendees, especially those who cannot or choose not to receive the vaccine. The fact is, employers and event organizers can – and perhaps should – require vaccination, with some limitations.
Requiring the Vaccine for Work
To protect workers and the public, employers may decide to require employees to receive the COVID-19 vaccine. Some employers have recalled their employees to the office after more than a year of working at home. Other employers have had employees in the office all along but have had to socially distance and mask up. Requiring the vaccine would allow unmasked indoor meetings and safe one-on-one interactions with the public. But you may wonder – is it legal to require employees to get vaccinated? Doesn’t it interfere with their personal medical decisions?
In California, the Fair Employment and Housing Act (FEHA) allows employers to mandate employees to get an FDA-approved COVID-19 vaccine. However, employers must not violate any other provisions of the FEHA in having this requirement. They cannot discriminate against or harass employees on the basis of their membership in a protected class, nor can they refuse to provide reasonable accommodations for a disability or religious belief. Employers also cannot retaliate against employees who seek accommodations.
For example, if an employer requires vaccination, it cannot discriminate against an employee who does not get vaccinated because of a disability. Instead, the employer must engage with the employee to determine appropriate accommodations, unless providing an accommodation would be an undue hardship. If an employee cannot perform his or her essential job duties with accommodations, or if doing so would endanger the employee’s or others’ health and safety, then the employer can exclude the employee from the workplace. In this situation, the employer can decide if it can make changes to the workplace to allow the employee to safely work there, if it wants the employee to work from home, or if termination is the best option. These decisions are best made with the help of a lawyer.
Similarly, employers cannot discriminate against employees who object to vaccination because of sincerely-held religious beliefs or practices. Employers should instead engage in the interactive process with the employees and determine reasonable accommodations. Isolating an employee from the public or other employees is not considered reasonable unless the employee specifically requests it.
Note that the FEHA laws discussed above do not protect employees who object to vaccination because they do not believe it is safe or because of their personal freedom to choose to not be vaccinated. Unless they articulate a disability or religious reason for not getting the vaccine, employers have no legal requirement to accommodate the unvaccinated employee. In fact, employers can enforce any reasonable disciplinary policies in effect against these employees, as long as they do not retaliate against the employees. Retaliation could arise, for example, if an employee was disciplined after objecting to the employer’s vaccination requirement when the employee has a disability that prevents him or her from safely being vaccinated. Again, employers should seek legal advice in a situation when reasonable discipline could be construed as retaliation. Finally, to enforce vaccine requirements, employers should require employees to submit written proof of vaccination (which of course is provided by the vaccination sites).
Requiring the Vaccine in Social Settings
Organizers of group events also may want to require participants to be vaccinated. The FEHA does not apply to group social settings, so organizers are generally free to require proof of vaccination. However, they should take care to avoid violating any other laws regarding medical information or medical conditions. For example, collecting vaccination records prior to an event could trigger HIPAA obligations for an organizer.
In addition, organizers should consider providing accommodations for would-be participants who are not vaccinated due to a disability or religious belief, similar to the accommodations an employer might provide. This could include separate seating sections for masked and distanced participants, or an outdoor performance in addition to an indoor one. Organizers should take care to meet any applicable Americans with Disabilities Act (ADA) requirements.
Now that many people are vaccinated, employers and event organizers may understandably want to require vaccination for in person group activities. Requiring vaccination – with some caveats such as complying with the FEHA and other laws – is not only possible but also a good idea. Vaccination requirements protect employees and event attendees, as well as any members of the public with whom they interact. They also save employers and organizers money because they can increase capacity and may not need to require masks or distanced areas. With a slow return to normalcy should come requirements that everyone get vaccinated against COVID-19 if they can.