The COVID-19 pandemic created a host of challenges for everyone. Now, more than a year since the initial quarantine began, we are starting to see the light at the end of the tunnel. Despite the many hardships and the unimaginable loss of life, the combination of everyday safety measures and widespread availability of FDA-authorized vaccines means life may soon return to normal. Many are now finding themselves asking, “Can my employer mandate the COVID vaccine?”
As some Californians are hesitant to vaccinate against COVID-19. Whether they are generally anti-vax or concerned about the available options, in particular, the fact is that there is significant resistance to the vaccines among a relatively small number of Californians. Still, the beat marches on. As employers prepare to welcome their employees back into the office, many companies are trying to mandate vaccines for all of their employees.
Can My Employer Force Me to Get Vaccinated Against COVID-19?
The Department of Fair Employment and Housing (the DFEH) released updated guidance in March 2021 addressing, among other things, whether and to what extent employers can mandate vaccinations against COVID-19 in California. The simple answer is yes*. The more complicated answer is not yet*. California’s Fair Employment and Housing Act (the FEHA) permits employers to require their employees to get FDA-approved vaccines, in which case any personal objections as to safety become irrelevant. However, the available vaccines have so far only received emergency use authorization (EUA), not FDA approval. This means that mandating COVID-19 vaccination is, at best, a gray area until the FDA grants its full approval.
Nevertheless, this distinction between FDA approval and EUA largely misses the point. In California, “employers may require vaccines before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace.”
Notably, any employer that may mandate the COVID vaccine must continue to comply with the FEHA, which, along with the Americans with Disabilities Act and Title VII of the Civil Rights Act, requires employers to provide reasonable accommodations for (and refrain from retaliating against) employees with known disabilities or sincerely held religious beliefs. These limits on an employer’s ability to mandate the COVID vaccine come with important caveats, and, if you believe they apply to you, it’s important that you’re informed and understand your rights so that you’re best able to protect them.
Related: What Are Reasonable Accommodations?
Can My Employer Demand Proof of Vaccination?
Employers may have the right to demand proof of vaccination. In workplaces in which employers have the right to mandate vaccination, it may also demand proof of vaccination. Because individuals may try to refuse vaccinations for any number of reasons not related to disability or religious exemptions, employers have every right to request proof of vaccination (though it may be advisable to instruct employees to withhold references to such information). In fact, employers’ demanding proof of vaccination may be more than permissible– it may be mandatory. In May 2021, Santa Clara County issued an order requiring all employers to ascertain the vaccination status of each of their employees. Whether this will become a growing trend has yet to be seen.
Emerging as a common practice is the COVID-19 Vaccination Record Card, which notes which vaccine you received, where you received it, and who administered it. Employers may request that you present this card as proof of your vaccination and maintain a copy as a confidential medical record.
Contact Pride Legal
If you or a loved one believe your employer is wrongfully requiring you to get vaccinated against COVID-19, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.