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October 18, 2021
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The California Department of Fair Employment and Housing (DFEH) recently issued COVID-19 guidance under the Unruh Civil Rights Act (Unruh Act), which prohibits discrimination from businesses based on an individual’s protected category status. The DFEH confirms that businesses may employ nondiscriminatory safety measures. The Guidance does not mandate new requirements, but interprets the current pandemic in concert with the Unruh Act.
The “Guidance for California Businesses Regarding Covid-19 Safety Measures and Reasonable Accommodations” confirms that businesses may take appropriate safety measures to minimize COVID-19 exposure among employees and customers.
- Businesses may inquire about customer COVID-19 symptoms and take their temperature as a precondition to enter the business, and may exclude customers from the premises if they fail the standards or refuse to respond or allow their temperature to be taken.
- Vaccination and Testing. Subject to reasonable accommodation, businesses may require proof of COVID-19 vaccination or negative test as a precondition to enter the business, and may exclude customers from the premises if they are not vaccinated or do not show required proof of a negative test.
- Subject to reasonable accommodation, businesses may require customers to wear masks and may exclude them from the premises if they refuse.
Businesses must provide reasonable accommodations to individuals with disabilities, unless the accommodation or modification would create a direct threat to the health or safety of others, an undue burden for the business, or a fundamental alteration to the business’s practices. Businesses cannot ask customers to share personal information about their disability and cannot not make unnecessary inquiries into the existence of the disability. Instead, businesses may accept the customer’s statement that they have a disability preventing them from complying with the COVID-19 safety measure in order to see if a reasonable alternative exists. Businesses cannot automatically send customers away if they cannot comply with the safety measures. Rather, they must engage in the interactive process to determine whether a reasonable accommodation may be provided. The Guidance provides several examples of accommodations among different industries.
Although the Guidance acknowledges that it is unaware of any legal interpretation requiring accommodation based on religious belief under the Unruh Act, the Guidance recommends following same procedures for requests for religious accommodation. It also says that businesses should follow the EEOC’s guidance in those situations, as stated in its “What You Should Know” publication.
- Review the DFEH’s Guidance here.
- Have policies and procedures updated for compliance.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
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