Mandatory COVID-19 Policies in the Workforce: DFEH Issues New Guidelines

The California Department of Fair Employment and Housing, or DFEH, issued new COVID-19 guidance to employers this month – and you need to know about them so you stay on top of what’s happening in your own workplace. Here’s the latest information from DFEH.

New DFEH Guidelines on COVID-19 Policies in California Workplaces

On March 4, 2021, DFEH updated its COVID-19 guidance to address whether employers can ask about symptoms, take employees’ temperatures, require the use of personal protective equipment, or require employees to be vaccinated against the disease.

Here’s what you need to know.

Can My Employer Ask About COVID-19 Symptoms?

Your employer can ask all employees entering the workplace whether they are experiencing COVID-19 symptoms, such as fever, coughing or sore throat. However, employers must keep your confidence – they cannot tell others about the symptoms you report. They can’t even keep your medical files together with your personnel file. Likewise:

• Employers can send employees home if they display COVID-19 symptoms
• Employers can send employees home if they test positive for COVID-19
• Employers are not supposed to identify employees who display symptoms, test positive, or are quarantining due to COVID-19
• Employees may be entitled to up to 12 weeks of job-protected leave under the California Family Rights Act if their particular case of COVID-19 results in inpatient care, or continuing treatment or supervision by a healthcare provider, or it leads to conditions such as pneumonia

Can My Employer Take My Temperature?

Your employer is allowed to take your temperature before allowing you into your workplace. It seems like this should be considered a “medical examination,” but it’s only allowed under limited circumstances – and employers can do so as a measure to keep other workers safe.

Related: Discrimination in California workplaces

Can My Employer Make Me Take a COVID-19 Test?

Your employer is allowed to mandate a medical examination such as viral testing to determine whether it’s safe to let you enter your workplace. However, your employer cannot subject you to antibody testing, which shows whether you have previously had COVID-19, in order to determine whether you are allowed to return to work. Your employer can only require you to take a test that says whether you currently have COVID-19.

Related: Everything you need to know about FEHA

Can My Employer Require Me to Wear a Mask or Use Other Personal Protective Equipment?

Your employer can require you to wear personal protective equipment during the COVID-19 pandemic. That might include things like face masks, gloves or protective gowns. If you require accommodations – such as for being allergic to latex – your employer must accommodate you unless it would present an undue hardship on your employer.

Related: 7 facts about religious discrimination most people don’t know

Can My Employer Require Me to Be Vaccinated Against COVID-19?

Your employer may be able to require you to be vaccinated against COVID-19. The bottom line is that under FEHA, employers can require employees to receive FDA-approved vaccines as long as the employer doesn’t discriminate against or harass employees or job applicants on the basis of a protected characteristic, and as long as the employer provides reasonable accommodations where necessary; the employer cannot retaliate against anyone for engaging in a protected activity, such as requesting a reasonable accommodation.

Employees with disabilities can request special accommodations from the vaccination, provided that the objection to the vaccine is based on the employee’s disability. Likewise, FEHA requires employers to reasonably accommodate employees’ sincerely held religious beliefs and practices; if you are against the vaccine for sincerely held religious reasons, or if your religion prohibits you from getting a certain vaccine, your employer must reasonably accommodate you. That may mean that your employer restructures your job, reassigns you or modifies its work practices – but an accommodation is not considered “reasonable” if it segregates you from the public or other employees.

Do You Have Questions About Whether Your Employer’s COVID-19 Policies Are Lawful?

If you’re not sure that what your employer is doing related to COVID-19 is legal, we may be able to help. Call our office at 818-230-8380 to speak with a Los Angeles employment lawyer about your situation now.