CA Issues Guidance to Biz: Civil Rights & COVID-19 Measures

Logo for the California Department of Fair Employment and Housing

The California Department of Fair Employment and Housing (DFEH) recently issued guidance to businesses regarding COVID-19 safety precautions. A DFEH news release states the guidance provides businesses with important information to safely operate, such as requiring masking or proof of vaccination to enter the premises, while also giving clear guidance on how to implement such measures consistent with California’s civil rights laws.

“As Californians navigate the COVID-19 pandemic, the Department of Fair Employment and Housing has provided guidance to protect civil rights and mitigate risk of COVID-19 transmission in employment, housing, healthcare, and, in our guidance released today, businesses open to the public” said DFEH Director Kevin Kish. “We can and must uphold civil rights while simultaneously disrupting the spread of COVID-19.”

Before allowing a customer onto its premises, DFEH’s guidance explains, a business may require customers to comply with COVID-19 safety measures, such as showing proof of COVID-19 vaccination, showing proof of a recent negative COVID-19 test, or wearing a face covering. A business may refuse entry to someone with COVID-19 symptoms. When implementing any of these rules – which may be required by local, state, or federal public health orders – a business must not discriminate on the basis of a personal characteristic protected by the Unruh Civil Rights Act, such as race, national origin, or religion. DFEH guidance also addresses whether businesses must provide reasonable accommodations related to sincerely-held religious beliefs or practices.

If a business requires customers to show proof of vaccination or imposes other COVID-19 safety measures the business must provide reasonable accommodations to individuals with disability-related reasons for not complying with the safety measure. DFEH’s guidance explains that businesses must work collaboratively with the individual with a disability to determine if a reasonable alternative is available. DFEH provides several examples, including:

  • If a supermarket requires customers to wear masks while inside the store, and a customer cannot wear a mask because of a disability, a reasonable alternative may be for the customer to wait outside while an employee shops for the customer.
  • If a restaurant with only indoor dining requires all customers to be vaccinated against COVID-19 and is forbidden by a local ordinance from setting up tables outside, it would not be a reasonable alternative to have the restaurant serve an unvaccinated customer at a table outside. However, the business may be required to provide the food for pick-up or by delivery to a customer who cannot be vaccinated due to a disability, if the business has those capabilities.
  • If a salon or barbershop requires all customers to be vaccinated against COVID-19 and/or to wear a mask at all times when inside the shop, the shop would be justified in denying a haircut, braiding, a shave, or another service that requires close contact between the employee and the unvaccinated/unmasked customer, because such a service would directly threaten the health or safety of the employee and possibly other patrons. In contrast, if the unvaccinated customer only wishes to purchase shampoo or styling cream, then an employee could ask the customer to wait outside while ringing up the order and bringing the product out to the customer.

DFEH’s guidance for businesses is currently available in English, and Chinese, Korean, Spanish, Tagalog, and Vietnamese translations will be posted soon. DFEH’s suite of COVID19 resources is available here.

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