By Kristina M. Launey

Seyfarth Synopsis: On October 18, the DFEH issued Guidance which expressly approves denial of entry to individuals who cannot show a negative COVID test or proof of vaccination, refuse to have their temperature taken or respond to COVID-19 symptom screening questions, subject to providing reasonable accommodations to customers with disabilities.

In the latest COVID-related quandary, businesses have been bombarded with requests for exemptions to vaccination and testing requirements on the basis of disability or religion by employees and customers alike. While the EEOC had provided guidance on the employment front, there was scant guidance regarding what places of public accommodations (under Title III of the Americans with Disabilities Act [“ADA”]) and business establishments (under California’s Unruh Act) can and cannot require in the way of vaccinations and COVID-19 testing as prerequisites to entry to the business.  Until now.

On October 18, the DFEH issued a Press Release announcing the also-issued Guidance for California Businesses Regarding Covid-19 Safety Measures and Reasonable Accommodations. The Guidance authorizes businesses to require proof of vaccination, proof a recent negative COVID-19 test, and/or to wear a mask, and to deny entry or service to those to refuse.  The Guidance also specifically states that businesses may ask customers if they have COVID-19 symptoms, and/or take customers’ temperatures, and refuse service to people with COVID-19 symptoms such as loss of taste or smell, fever, or coughing.  The business may deny entry or service to someone who refuses to have their temperature taken or state whether they have COVID-19 symptoms.

The Guidance includes two caveats:

(1) These actions must be applied equally to all customers.  If they are imposed only on customers with particular characteristics, such as customers who appear to be from a foreign country, then the business violates the Unruh Act.

(2) A business must reasonably accommodate individuals with a disability that prevents them from complying with any of the above safety measures unless the accommodation or modification would create a direct threat to the health or safety of others, an undue burden to the business, or a fundamental alteration to the business’s practices.  The Guidance explicitly states that the business must take the customer’s representation that they have a disability preventing them from complying with the COVID-19 safety measure without question or digging for more detail.  The business can only engage in a type of “interactive process” with the customer to determine what reasonable alternative to allow the customer access may exist while still protecting employees and other customers.

The Guidance states that the type of reasonable alternative may need to be provided is determined on a case-by-case basis – taking the same approach we recommended earlier this year.  The Guidance identifies the following factors to consider:  The business’s layout, number of employees on duty, types of goods or services offered, customer’s needs, and whether other customers are present.  The Guidance provides examples such as a grocery store providing curb-side service to a customer, a small computer store providing service by phone, video, or text, or a bar providing outdoor service to a customer.  The Guidance recognizes there are times when there a reasonable accommodation might not be available because possible alternatives create a direct threat to the health or safety of others, an undue burden to the business, or a fundamental alteration of the business.  The Guidance provides some examples:  A salon or barbershop where customers and employees are in close contact would be justified in denying services to an unvaccinated customer; but if that customer only wanted to buy shampoo, the salon could bring the product to the customer at the curb.  As another example, a theater that denies entry to an unvaccinated patron might set up a screening outside unless it would be an undue burden or fundamental alteration of the theater’s business.

We have seen requests for exemptions to masking requirements, then vaccination mandates, based on disability since the inception of the pandemic.  What about religious exemptions of which we’ve seen more and more lately?  The Guidance states that the DFEH is not aware of any published court decision or other source of law clearly establishing that the Unruh Civil Rights Act requires businesses to reasonably accommodate the sincerely-held religious beliefs of customers. However, to facilitate the business transaction, the DFEH suggests in the final FAQ that in religious exemption situations, businesses follow the guidance provided for reasonable accommodations for disability.

Edited by Minh N. Vu