COVID-19 Health Order FAQs for exemptions and enforcement

Get answers to questions about what the COVID-19 Health Order says about exemptions and enforcement.

NOTE: These FAQs are designed to help answer your questions about the Health Order, but they are not updated as often. So, if there are any differences, follow what the most recent Health Order says.

Exemptions and enforcement FAQ about COVID-19 health orders

I operate a facility subject to a vaccination mandate under the health order. What do I do if an employee requests an accommodation for a sincerely held religious belief? What qualifies as a sincerely held religious belief?

Operators of high-risk settings must require all workers to have their initial vaccine series and 1st booster once eligible unless those workers meet the requirements for qualified medical or religious belief exemption. Operators of other businesses previously subject to the health order’s vaccination mandate (such as restaurants, bars, fitness facilities, and indoor mega-events) are strongly recommended to continue to require proof of being up-to-date on vaccination or proof of a negative test.

Operators are encouraged to consult with their own legal counsel before approving or denying an employee's request for an exemption from the vaccination requirement. Each request should be considered on a case-by-case basis, and the following is offered as general guidance only. Under the health order, an employee may be exempt from the COVID-19 vaccine mandate only under specific circumstances. In the case of a claimed religious exemption, the employee must establish that they have a sincere religious belief that prevents them from receiving the vaccine. If they make this showing, the employer must then engage with the employee to determine if the employer can provide a reasonable accommodation in lieu of vaccination.

To qualify for a religious exemption from the health order's vaccination requirement, an employee must demonstrate:

  1. the employee has a sincerely held belief that prohibits them from receiving the vaccination, and

  2. that belief is religious rather than secular or scientific.

Employees may make a request for exemption verbally or in writing. And an employer may request its employee supply additional written information about the claimed belief. The health order also requires employees to state that they are making their request under penalty of perjury.

As to the first step of this test, generally, an employer should assume that an employee seeking a religious exemption does so in good faith, unless there is an objective basis for questioning their sincerity. For example, if the employee only recently adopted the stated belief or the employee has previously received other vaccinations, the employer may inquire as to why the employee now has a different position.

As to the second step of the test, the fact that an employee claims that their belief is religious is not determinative. When an employee makes a claim for religious exemption, the employer may attempt to determine whether the belief is, in fact, religious or secular in nature. An employee's political, sociological, personal, or philosophical views do not qualify as religious beliefs that would support an exemption under applicable state or federal law.

The ultimate inquiry is whether the employee has a belief that occupies a place in their life parallel to that filled by God in traditional religions. If an employee's request for an accommodation does not readily demonstrate that their belief is sincere or religious in nature, the employer may make further inquiries, such as:

  • request additional information about the employee's belief system, the nature and tenets of their asserted beliefs, and how they follow the practice or belief;

  • review written religious materials describing the belief or practice; and

  • obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee's belief system.

The following is a non-exhaustive list of beliefs state and federal courts have held are not religious (and therefore, standing alone, do not warrant an exemption):

  • fear of possible side effects from immunization;

  • a desire to live a "healthy" or "pure" lifestyle;

  • opposition to vaccination due to veganism;

  • a belief that the vaccine will do more harm than good; and

  • distrust in the government or the science supporting vaccination.

Most organized religions do not prohibit vaccinations. A non-exhaustive list of religious faiths and their stance on vaccination is available. But an employee is not required to cite a recognized religion or religious tenet to qualify for an accommodation. As to the COVID-19 vaccine specifically, neither the Pfizer nor Moderna vaccines contain fetal cells. An employee's concerns about the use of fetal cell lines in researching the COVID-19 vaccines may also not qualify as a sincere religious belief since those same cell lines were used to develop many other vaccines, including those for hepatitis A, rubella, and rabies. If the employee has previously received other vaccines without concern, the claimed belief may not be sincere or religious.

If an employee does have a sincere religious belief that prevents them from receiving the COVID-19 vaccine, the employer must then determine whether it can offer a reasonable accommodation. Employers are not required to accommodate employees if it would cause an undue burden on operations or result in more than a "de minimis" cost to the business. For example, an employer does not have to accommodate an employee's religious beliefs if the accommodation is costly, infringes on other employees' job rights or benefits, compromises workplace safety, decreases workplace efficiency, or requires other employees to do more than their share of potentially hazardous or burdensome work.

In making this determination, an employer may consider whether the employee's job requires them to encounter non-employees whose vaccination status could be unknown or who may be ineligible for the COVID-19 vaccine. In such cases, an unvaccinated employee may pose a direct threat of harm to coworkers or non-employees if they remain in the workplace and an accommodation may not be possible.

Whether an employer can offer an accommodation depends on the nature of the business and the specific employee's job duties. An employer must engage in an interactive process with its employee to determine whether a reasonable accommodation exists under the particular circumstances. Depending on the employee's job duties and location, reasonable accommodations may include requiring the employee to regularly test for COVID-19 and wear an appropriate face covering, allowing the employee to telework, or transferring the employee to a different position or location.

What if my employee claims they have a qualifying medical condition? What types of conditions qualify for an exemption from the vaccination requirement under the health order?

Under the health order, an employee may be exempt from the vaccination requirement if they have a qualifying medical condition. This means that they have a condition or disability recognized by the Federal Drug Administration ("FDA") or Centers for Disease Control and Prevention ("CDC") that prevents them from receiving a COVID-19 vaccination.

A list of recognized conditions that prevent someone from receiving the COVID-19 vaccine is available, and includes:

  • Documented history of severe allergic reaction to one or more ingredients of all the COVID-19 vaccines available in the U.S.; or

  • Documented history of severe or immediate-type hypersensitivity allergic reaction to a COVID-19 vaccine, along with a reason why the individual cannot be vaccinated with one of the other available vaccines.

Conditions that do not prevent someone from receiving the COVID-19 vaccine (and which therefore do not qualify an individual for an exemption) include:

  • Allergic reactions (including severe allergic reactions) not related to vaccines (COVID-19 or other vaccines) or injectable therapies, such as allergic reactions related to food, pet, venom, or environmental allergies, or allergies to oral medications;

  • Latex, egg, or gelatin allergies; or

  • Delayed-onset local reaction around the injection site after the first COVID-19 vaccine dose.

If an employee believes they have a qualifying condition, they must provide their employer (or the business where they are working) with a signed statement from a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption. The statement should not reveal any underlying medical condition or disability. The California Medical Board has announced that licensees who grant an exemption without a legitimate medical reason may be subject to disciplinary action.

How will the Safer Return Together Health Order be enforced?

Most San Franciscans have been doing an excellent job when it comes to protecting public health, and we have no reason to believe that will change. San Francisco's priority when it comes to public health orders has always been compliance rather than punishment, so the City's approach has been to first educate people about what the health orders require. If necessary, various City departments, including the Department of Public Health, the Sheriff, and Police, have the authority to issue notices of violation, orders to vacate the premises, or citations for violating health orders.

Last updated June 28, 2022