Blog | Dolan Law Firm

Don’t Mess with California – Supreme Court Tells Texas to Sit Down

Written By Christopher B. Dolan and Jeremy M. Jessup

Jordan from Emeryville wrote in to ask: I recently read a tweet by the Human Rights Campaign that basically said there were more than 250 anti-LGBTQ+ bills moving through legislation nationwide. And that over 125 of those bills were targeting the transgender community and that eight could become law at any moment. As sad as this is, I was hoping there were some bright spots out there, are there?

Dear H. Jordan: Unfortunately, as Pride month approaches, several states have introduced legislation related to LGBTQ+ discrimination. Some legislation will try to remove anti-discrimination laws that LGBTQ+ people really need, while others will single out and target LGBTQ+ people for unfair and unequal treatment. The burning question is what can be done to try and stop, or at the very least, limit the effects of these discriminatory laws that have been promoted under the guise of “religious liberty.”

Believe it or not, the State of California has crossed state lines in an attempt to curtail such legislation, by barring state-funded travel to states deemed to be attempting to limit the rights of the LGBTQ+ community. The measure (which has now expanded to 12 states) prevents California agencies, public universities and boards from funding work-related trips to Texas (and now other states) who have laws that are deemed discriminatory. This measure was enacted after the Texas Legislature moved to allow foster care agencies to use religious liberties as a reason to deny same-sex couples the right to foster children. At the time, California Attorney General Xavier Becerra said the law, “allows foster care agencies to discriminate against children in foster care and potentially disqualify LGBT families from the state’s foster and adoption system,” and that, “[d]iscriminatory laws in any part of our country send all of us several steps back. That’s why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it.”

In response, Texas Attorney General Ken Paxton sued the State of California in 2017 claiming that the measure violated the U.S. Constitution’s commerce clause by discriminating against interstate commerce and called the California law an effort, “to punish Texans for respecting the right of conscience for foster care and adoption providers.” According to a brief filed, “California’s travel ban is an affront to the sovereignty of Texas — as well as the ten other States that California has blacklisted.” The brief also argued that the California ban shows “religious animus” toward Texas.

The lawsuit, which was filed directly at the U.S. Supreme Court level (which is allowed when there are disputes between states) was supported by 19 states, who wrote briefs in support of the stance taken by Texas. Despite the prior administration’s urging to have this case heard, in a 7-2 decision and without explanation, the U.S. Supreme Court turned the case away and denied the state of Texas’ request to file a complaint. This means that California may continue with their ban. This refusal to accept the complaint is significant, given that the potential conflict between gay rights and religious freedom has become a central theme at the nation’s highest court, which now has an ostensible 6-3 conservative majority.

However, the State of California is not the only one fighting back against anti-LGBTQ+ legislation; according to the Texas Tribune, business leaders in Texas have cautioned the State that these laws could be harmful to both Texans and to the state’s economy, which is still recovering from the recession that accompanied the pandemic. Recently, members of the business group Texas Competes (made up of over 1,400 Texas employers, business and tourism groups and backed by big tech companies like Hewlett Packard) identified numerous bills that they say will infringe on LGBTQ+’s rights, “tarnish Texas’s welcoming brand,” and hurt local businesses including the tourist industry.

“Businesses big and small and economies thrive on certainty,” says Jessica Shortall, the managing director of Texas Competes. “What we’re faced with again this year is the uncertainty of whether discriminatory policies will rear their heads and cause all of the problems you’ve heard from our business speakers.”

According to the Human Rights Campaign, more than 90 major U.S. corporations have spoken out in opposition to anti-transgender legislation being proposed in states across the country. Some of the more concerning bills deal with both youth and collegiate sports. One bill, which has already passed at one level, would prevent public school athletes from participating in school sports unless their team designation was inline with their sex assigned at birth. Texas is also attempting to pass a similar mandate for colleges and universities.

However, the NCAA (National Collegiate Athletic Association) Board of Governors released a public letter stating that it, “firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports.” Moreover, “When determining where championships are held, NCAA policy directs that only locations where hosts can commit to providing an environment that is safe, healthy and free of discrimination should be selected.” Currently, Texas is scheduled to host several events, including the 2023 Women’s Final Four in Dallas and the 2024 College Football Playoff National Championship game set for Houston. If the NCAA were to deem Texas one of those states, Texas would stand to lose out on nearly $1 billion dollars in economic benefits. This warning by the NCAA puts not just Texas, but another 29 states on notice that if they elect to move forward with discriminatory legislation, the NCAA will act.

The steps being taken are not perfect and will not stop all of the anti-transgender legislation in the works (Tennessee Governor Lee has signed similar bills, one as recently as last month, which Nashville’s top prosecutor said recently he will not enforce.) As long as there are people and entities willing to stand up, there will always be bright spots. It should be noted that as this article was waiting to be published, Democrats in the Texas legislature have killed a bill that would have required transgender athletes to compete on sports teams corresponding to their gender assigned at birth.

Join the San Francisco Trial Lawyers Association on June 18-20 for the New Lawyers Division’s Adventure Conference.

There will be 26 speakers, including Dolan Law Firm’s Mari Bandoma Callado, 6 CLE hours and a fun Summer themed Care Package. All classes are virtual & there will be (optional) in person social events at the Hotel Paradox in Santa Cruz.

Topics will pique the interest of all new lawyers and include: Evidence, Mediations, Objections, Depos, TBI cases, Second Chairing, Courtroom Tips, DE&I, Online Focus Groups, Case Checklists, After Filing, Expert Witnesses, New Lawyer Tips and more. Click here to register

Written By: Christopher B. Dolan

This week’s column is a follow-up to last week’s article on workplace violence including shootings. That column spoke about the rights and responsibilities of a business owner to create a safe workplace.

This column will inform you as to how you, as an individual and/or employee, can seek protection if you are concerned about workplace violence or the potential for violence from a family member or co-employee.

While employers are able to obtain Workplace Violence Restraining Orders, employees (and individuals outside of the workplace) are able to obtain Civil Harassment Restraining Orders to protect themselves against stalking, harassment and threats of violence. California Code of Civil Procedure (C.C.P.) Section 527.6 provides an individual the right to obtain a temporary restraining order, and if warranted, a three-year restraining order and in some instances, criminal penalties may apply. The basis for a restraining order can includes a course of conduct that constitutes harassment of an individual via phone, text, email, or other method of communication (California Penal Code Section 653(m)), stalking (California Penal Code Section 646.9), or harassment (C.C.P. Section 527.6 (b)(3). What follows are the definitions of these behaviors so that an individual who suspects violence of this sort can understand the law.

Course of Conduct
As stated in the California Code of Civil Procedure, “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email. Constitutionally protected activity is not included within the meaning of “course of conduct.”

Electronic Harassment
The California Penal Code states that “Electronic harassment” is when someone, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor.

Stalker
Under the law, a “stalker” is someone who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family. In addition to obtaining a restraining order against a stalker, the stalker may also be guilty of a misdemeanor.

Harassment
“Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner.

Credible Threat of Violence
“Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for the person’s safety or the safety of the person’s immediate family, and that serves no legitimate purpose.

There is a form which an individual can fill out, a Civil Harassment Training Order, created by the Judicial Council of California, Form CH-100. Once Form CH-100 is stamped by the Court, a Temporary Restraining Order Pending Hearing, may be obtained and provide protection for a period of time up to 25 days by which time a hearing for a permanent injunction must be set where the Respondent may present evidence arguing against the execution of a permanent restraining order.

For a temporary or permanent Order to have an effect, it must be served on the person to be restrained (the Respondent) and the police. You should not be the one to serve the Respondent as they may react violently. A Temporary Restraining Order goes into effect immediately and the Respondent (harasser, stalker, etc.), is immediately ordered to stay away from the protected parties (which can include family members and animals). The Temporary Restraining Order can include orders enjoining a party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner. The Order can also result in the Respondent having to surrender any guns, firearms and ammunition they may possess. Violation of a temporary or permanent restraining order can result, fines, arrest and incarceration.

The Daily Journal has selected Christopher B. Dolan, founder and Chief Legal Counsel of the Dolan Law Firm, P.C. as 2021 California Lawyer Attorneys of the Year (CLAY). The CLAY Awards recognizes California lawyers whose work has made a significant impact on public policy, the law, the profession, or a particular practice area.

Read the Daily Journal Article

Dolan was recognized for his work in In Re: Ghost Ship Fire Litigation (Alameda Co. Super. Ct., filed December 23, 2016) representing survivors and families of the victims in a catastrophic fire that occurred on December 2, 2016 at an Oakland warehouse called Ghost Ship, which killed 36 and injured many others. Dolan worked with a coalition of attorneys from 25 firms representing 78 plaintiffs as an executive committee member with Robert Bale and Thomas Brandi and liaison counsel Mary Alexander.

As noted in the Daily Journal, Alexander and executive committee members Bale, Brandi and Dolan resolved this matter with a $32.7 million settlement with Oakland officials, an undisclosed amount from PG&E and additional millions more from the building’s owners.

“This case required all of my life experience, education and decades of ‘figuring it out’. As a young man, I worked in dirty, hot, tiring jobs in construction to fund my studies. As a young lawyer, I renovated two old San Francisco buildings including our Market Street headquarters, learning about electrical systems, transformers, voltage drop, metering, and building/electric codes involved in old buildings. So much of what I bring to the table is practical knowledge.” Dolan said.

The team relentlessly pursued the City of Oakland with several arduous but successful trips to the court of appeals and PG&E with multiple depositions and a mountain of documents to build a case and hold them accountable for this tragedy.

For more on the case in the 2021 CLAY Awards publication, visit DailyJournal.com

Written By: Christopher B. Dolan

Following the horrific workplace shooting in San Jose this past week, NBC Bay Area Investigative Journalist Stephen Stock reached out to me to ask: “What are the rights of employees, and what are employer responsibilities when there is a threat of workplace violence?” I provided him a response that did air, but given the constraints of the evening news, I think it is important to provide a comprehensive analysis to the readers of this column.

According to data tracked by Everytown for Gun Safety (everytown.org), there have been 37 mass workplace shootings in California since 2009. Sadly, and notably, five of those mass murders occurred in just the last 10 weeks. Employees now, rightfully, are on high alert for signs and behaviors which may foretell a pending attack. According to experts, the following behaviors may indicate warning signs of pending workplace violence: threats of violence; intimidation; speaking about weapon ownership; intimidation; paranoia; angry and argumentative behavior; antisocial behavior like commenting favorably about violence in the news; and vindictive behavior such as saying, “he will get his,” or, “I’ll make her pay for that.” The United States Department of Labor has an excellent publication on the issue of workplace violence called the “DOL Workplace Violence Program.” It provides a guide that can be used in judging workplace behavior and what to look out for to predict and prevent workplace violence.

California Labor Code Section 6400 states that, “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” Case law has held that Section 6400 creates an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace. Therefore, if there are threats of violence, or reasonable fears for your safety in the workplace, report it to your employer immediately. It is best to do so in writing so that a record is established.

An employee may not be forced to work in an unsafe work environment and, pursuant to California Labor Code Section 6310, it is unlawful for an employer to discipline or discharge any employee for making a complaint of an unsafe working condition to them, Cal-OSHA, or any other government agencies with a responsibility to protect workers. My office has represented workers who have refused to go back to a jobsite where their foreperson had made threats of violence or, in some instances, where they have been struck by an employee or co-worker. We have also represented workers that have been retaliated against after making a complaint to their employer about unsafe workplace conditions and/or threats of violence in the workplace. Likewise, we have represented workers fired after calling the police following an assault by a co-worker on the job. Employees who are retaliated against for making complaints of an unsafe workplace can recover economic damages such as lost pay, medical expenses, anxiety, grief, humiliation, and emotional distress. Tragically, I have also represented the family of a woman who, along with her boss and another supervisor, were shot and killed by a disgruntled employee who had made threats of violence which the employer did not take seriously.

Employers have a legal procedure that they can employ to prevent workplace violence. Pursuant to California Code of Civil Procedure (CCP) Section 527.8, “any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order and an order after hearing for a permanent restraining order on behalf of the employee and, at the discretion of the court, any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.”

“Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an employee to or from the place of work; entering the workplace; following an employee during hours of employment; making telephone calls to an employee; or sending correspondence to an employee by any means, including, but not limited to, the use of the public or private mails, interoffice mail, facsimile, or computer email. “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.

A Temporary Workplace Restraining Order can be filed using a form which can be found here. A workplace Restraining Order can ban an individual from coming near the workplace, near an employee, or their families, and it requires that the restrained person surrender any firearms that they may possess to the police. A temporary restraining order can be obtained by an employer, immediately, by filing Form WV-100, with the local court and serving the same on the employee and the local police. After a hearing, the temporary order can be extended for a period of up to three years.

Workplace violence is becoming an epidemic. No one should take threats lightly. Employees should report the warning signs and employers should act promptly. Reach out to a qualified trial lawyer to assist you, if necessary, to take action against your employer, should they fail to meet their responsibilities, or should you suffer retaliation If an employer fails to take immediate and appropriate action; an employee may seek a protective order themselves. That will be discussed in next week’s column.

Leading the Filipino Bar Association of Northern California (FBANC) in the midst of a global pandemic was an incredible test of character and determination. The FBANC 2020-2021 Board of Directors faced extraordinary demands during an unprecedented year: from completely transforming FBANC’s traditional in-person programming and events into a virtual format, to engaging members experiencing fatigue from months of pent-up anxiety, as well as fundraising to support FBANC’s operations and the FBANC Foundation during a complete shutdown of the economy. Despite these challenges, FBANC remained resilient and determined to carry out its mission of serving the community.

In the summer of 2020, the National Asian Pacific American Bar Association (NAPABA) bestowed its prestigious Affiliate of the Year Award to FBANC based on our deep commitment to diversity and inclusion, as well as our zealous service to the community. In October 2020, San Francisco Mayor’s Filipino American History Month Celebration also recognized FBANC’s four-decade-long commitment to the community.

This award and recognition celebrate FBANC’s long history as a social justice and community service organization. This past year, FBANC was determined to honor that history by providing pro bono legal services through our virtual legal clinics and Know Your Rights webinars to the public. FBANC remained committed to diversifying the legal profession by supporting our attorney and law student members with professional development programs (including hosting two virtual Komunidad conferences and a virtual Pinay Powerhouse Conference), networking and mentorship opportunities, and scholarships through the FBANC Foundation. FBANC acted in solidarity with our Black brothers and sisters and combatted the rise in anti-AAPI discrimination and hate through coalition building and collaborations with our sister organizations. Amid our profound pain and loss, we found solace in this community – a community that stands up against systemic racism, oppression and injustice.

We know that the work continues. We know that systems of patriarchy, white supremacy and capitalism existed prior to the pandemic and that these systems teach us that we do not belong. I invite you to join FBANC in celebrating our 41st anniversary by attending our Virtual Installation Gala. This year’s theme Know History Know Self reflect the work we continue to do to resist and fight against these systems of oppression. For more information, go to https://fbanc.org/annual-dinner

I am grateful to the Dolan Law Firm, PC for its commitment to diversity, equity and inclusion and for wholeheartedly supporting organizations like FBANC and encouraging me to take on leadership roles to serve our community.

In Solidarity,

Mari Bandoma Callado
Dolan Law Firm Senior Associate Attorney and Director, Diversity, Equity and Inclusion
FBANC President 2020-2021

About FBANC:

Established in 1980, the Filipino Bar Association of Northern California (“FBANC”) is an organization of attorneys, judges, law students and paraprofessionals dedicated to serving the Filipino American legal community in Northern California. Through the volunteer work of its members, FBANC offers various programs and events, including regular free legal clinics, professional development and mentorship programs for its law student and attorney members. The organization also provides a voice for and advocates on behalf of Filipino American interests in various forums.

Chris Dolan was called to act as a legal employment expert today on NBC news regarding the horrible workplace shooting at the VTA yard shooting that took place at San Jose Valley Transportation rail yard where a gunman opened fire and killed long time employees. When questioned about workplace safety, Mr. Dolan said that you have to “balance the rights of everyone…an employer has responsibilities to maintain a safe workplace. That includes that the workplace is free of violence.”

Our condolences go out to the families and friends of the victims identified by Santa Clara County Medical Exaniner-Coroner as: Paul Delacruz Megia, 42; Taptejdeep Singh, 36; Adrian Balleza, 29; Jose Dejesus Hernandez, 35; Timothy Michael Romo, 49; Michael Joseph Rudometkin, 40; Abdolvahab Alaghmandan, 63; Lars Kepler Lane, 63; and Alex Ward Fritch, 49.

Further information about this is on the link below.

CLICK HERE

Written by: Corinne Orquiola, associate attorney & Diversity, Equity & Inclusion Committee Member

Dolan Law Firm takes a moment to recognize #MentalHealthAwareness Month. This past year has presented many challenges that tested our strength and resiliency. Throughout the pandemic, those who have never experienced mental health challenges have found themselves in crisis for the first time. More than ever, we need to combat the stigma surrounding mental health concerns. Dolan Law Firm wants to assure those who are struggling that you are not alone.

More than 51 million adults in the United States face the reality of managing a mental illness everyday. Fewer than half of those adults who experience mental illness get the help they need facing common barriers to treatment including the cost of mental health care and insurance, prejudice and discrimination and structural barriers like transportation. The stigma and discrimination still surrounding mental illness causes so many to suffer.

Dolan Law Firm recognizes and supports all who struggle and this month is highlighting #Tools2Thrive- what individuals can do throughout their daily lives to prioritize mental health, build resiliency, and continue to cope with the obstacles of COVID-19. Mental health is essential to everyone’s overall health and well-being, and mental illnesses are common and treatable.

How do I seek help for mental health?

One way to check in with yourself is to take a mental health screen at MHAscreening.org. It’s a quick, free, and private way for someone to assess their mental health and recognize signs of mental health problems. Mental health conditions such as depression or anxiety are treatable and recovery is possible. Dolan Law Firm encourages you to take the time to take care of your mental health and to reach out to others and check in on them. End the silence around mental illness.

For more information, visit:

In California, people are protected against discrimination and harassment on the basis of actual or perceived disability – whether it is physical or mental. The disability discrimination attorneys at the Dolan Law Firm have represented numerous disabled people in achieving access and/or compensation when they have been treated unlawfully.

If you would like to learn more about your right to mental health accommodations at work, CLICK HERE.

Written by: Vanessa Deniston and Christopher Dolan

Lenora from California asks: Before COVID hit, I felt extremely stressed out at work and pushed to my limits emotionally, to the extent that I believed I might have an anxiety disorder. I regularly experienced panic attacks, feelings of dread and trouble concentrating, but never spoke to a medical professional about it. Unfortunately, working from home during the pandemic presented its own challenges from having anxiety around the virus itself to juggling a high-pressure job while caring for two young children attending school on Zoom. My symptoms seem to have worsened. I worry about how I will readjust once I am asked to physically return to the office and how my anxiety will affect my performance. Do I have any options that might ease my return-to-work?

Lenora, thank you for writing in about your sensitive issue. The COVID-19 pandemic can certainly be described as a global traumatic event, that has created unique stresses on many, including the exacerbation of preexisting mental health conditions. This is particularly acute with working mothers such as yourself who struggle with their mental health.

It is important to first understand that the general stress and anxiety we all feel from time to time regarding work, family life and yes, even the pandemic, does not constitute a disability under California law. Anxiety disorders, depression and related mental health conditions, however, can constitute disabilities under the law. If your employer employs five or more persons and if you are found to be qualified person with a disability under the Fair Employment and Housing Act (Cal. Gov. Code § 12900) you are entitled to reasonable workplace accommodations to help you perform you job. To be a “qualified person with a disability” you must meet the skill, experience, education and job-related requirements and be able to perform the essential functions of your job with or without a reasonable accommodation.

If you are found to have a mental health condition that effects your ability to perform your essential job functions, it is important to place your employer on notice as soon as possible if you wish to explore workplace accommodation options. Any notice and request for a workplace accommodation should in writing, when possible.

Once an employer receives the notice, the California Fair Employment and Housing Act requires the employer to engage in an interactive process with the employee to explore reasonable accommodations that would assist the employee in performing the essential functions of their job. The key word there is reasonable. What is considered reasonable? After the year we’ve just had, the answer to that question is not as clear as it once was.

The most evident shift is the work-from-home arrangement. Statewide regulations surrounding the COVID-19 pandemic, have essentially forced the hand of employers to experiment with work-from-home arrangements. Some businesses floundered, some thrived and others simply course corrected. Every job environment is unique, and every employer has had to adapt to the pandemic in its own unique way. While working-from-home accommodations may have been an unfeasible in early 2020, they may now be considered a more reasonable option if an employer was able to successfully adopt a work-from-home business model. Work-from-home options post-pandemic will not be feasible for all businesses, however, and you should not assume a work from home accommodation is necessarily reasonable one. An employer cannot be forced to extend accommodations that would cause their business to suffer undue harm or significantly disrupt their operations.

While working from home part or full time might be an option for you, reasonable accommodations can take many other forms. It may take experimenting with different reasonable accommodations before you and your employer settles on one or more that work best for both of you. Common accommodations for mental health disabilities may include flexible scheduling, intermittent leave for the employee to attend health appointments, frequent breaks, removal of distractions, a task reminder system, and/or a quieter work environment. While you can suggest reasonable accommodations unique to your situation during the interactive process, employers are not obligated to grant every accommodation you might propose. It can often be more difficult to find a workplace accommodation that works for both the employer and the employee when dealing with a mental health disability as compared to a physical disability, so it is important to stay flexible and open-minded when engaging in the interactive process.

It is also important to know, that while they may not elect to do so, your employer has a right to request medical authorization from your healthcare provider, which should indicate what medical restrictions you have, if any. This will assist your employer in determining what accommodations they can or cannot reasonably accommodate. The interactive process is a two-way street and both parties must engage in good faith. If you find your employer is willfully ignoring your requests for reasonable accommodations, refusing to engage in the interactive process or creating unnecessary obstacles for you during the interactive process, contact an attorney to fully understand your rights.

Written By: Christopher B. Dolan and Emile A. Davis

This week’s question comes from Giuseppe J. in Orinda: I run a small business. Having survived the worst of this pandemic, I am reopening my store soon. Some of my staff have received the COVID-19 vaccination, but not all of them. For the safety of all of the employees, and to protect the public and selfishly, my own potential liability and health, I would like to require all of my employees to be vaccinated in order to return to the worksite. Is that something that I can do without breaking the law?

Dear Giuseppe: Thank you for this important question. As vaccines become widely available and more businesses are reopening, this question will affect employees and business owners throughout California. Generally, pursuant to both federal Equal Employment Opportunity Commission (EEOC) guidance, as well as the California Department of Fair Employment and Housing (DFEH), an employer may require an FDA approved COVID-19 vaccine as a condition of employment or return to the workplace. However, there are several areas to pay special attention to and/or which may allow an exemption to individual employees.

Disability Accommodation

A qualified individual with a disability may be entitled to an exemption from an employer required vaccine policy. The FEHA requires employers to make reasonable accommodations to an employees’ known disabilities. If an employee objects to vaccination on a disability related basis, the employer must engage in an interactive process to reasonably accommodate the employee. If an accommodation is available that does not create an undue hardship on the employer, it must be provided to the disabled employee. However, if the employee cannot perform the essential functions of their position in a manner that doesn’t endanger the health or safety of others, even with reasonable accommodations, the employer may exclude the employee from the workplace.

Religious Accommodation

If an employee objects to vaccination on the basis of a sincerely held religious belief or practice, the employer must reasonably accommodate the employee. The accommodation analysis is not as stringent as with disability. Unless specifically requested by the employee, a religious based accommodation 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.

But I Don’t Trust the Vaccine — Employee Refusal

Some people are afraid of, or uncomfortable getting the vaccine. If an employee refuses to be vaccinated with an FDA-approved COVID-19 vaccine but does not have a disability reason or sincerely held religious reason for not being vaccinated, the employer does not have to accommodate that employee. The employee may be refused access to the worksite.

Employer Inquiry

As part of returning to work, employers may seek limited medical information. Employers may generally ask their employees entering a workplace whether they are experiencing COVID-19 symptoms and/or require proof of vaccination.

Requesting proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination since there are other unprotected reasons a person may not be vaccinated. However, because such documentation could potentially include disability related medical information, an employer should specifically omit any other medical information from that documentation. Importantly, if a mandatory vaccine policy is enacted at a workplace, information obtained would be considered a confidential medical record and that information must be kept private and maintained separately from regular personnel files.

The scope of permissible inquiry may change over time. As cases decrease or increase, these standards could change — employers should rely on the CDC and other public health authorities for guidance.

If you would like further guidance as to the DFEH or EEOC, the following links may be helpful.

DFEH Vaccine Guidance CLICK HERE
EEOC Guidance CLICK HERE

Thank you, Giuseppe, for the opportunity to discuss this important and emerging legal issue.

Don’t Mess with California – Supreme Court Tells Texas to Sit Down

Written By Christopher B. Dolan and Jeremy M. Jessup

SFTLA: Adventure Virtual Conference

Workplace Violence: How to Stay Safe (Part 2)

Christopher B. Dolan Honored with 2021 CLAY AWARD

Workplace Violence are Increasing: How to Stay Safe