With the peak of the pandemic behind us and the rollout of vaccines nationwide, employers have started to increase hiring and returning to the office. However, more and more employers are beginning to ask job applicants about their COVID-19 vaccination status in an effort to keep co-workers and customers safe. Before you start asking current employees and applicants about their vaccination status, know there are legal limits to such questions.
Employers asking these questions should do so cautiously and appropriately. According to legal experts, “Determining any type of employment based on if someone is vaccinated or not is going to open up a lot of potential legal issues for employers. Those hiring need to decide if and why that person’s vaccination status is relevant.”
Just to err on the side of caution, employers should only ask vaccination based questions if it specifically pertains to the job. For example, an employer will have more leeway asking a healthcare worker if they’ve been vaccinated because they work directly with patients versus asking a construction worker.
Legality of Vaccination Status
The Americans with Disabilities Act (ADA) disallows employers form asking potential employees questions that may reveal a disability prior to hiring. However, the Equal Employment Opportunity Commission (EEOC) has clarified that asking workers if they have been vaccinated or not does not fall into a disability related inquiry under the ADA.
Legal experts advise, “It’s important that employers and their hiring teams don’t overstep. Asking about the vaccination itself will usually be permissible. However, asking additional questions about why a job applicant didn’t receive a vaccination should be set aside until a job offer has already been made.”
All in all, it’s probably not going to be worth the trouble for most employers to ask about vaccination status. Asking applicants about their vaccination status may depend on the employer’s industry and whether there are social distancing accommodations.
Making vaccination a condition for employment could lead to accommodation requests regarding religion or disability, while also leading to claims of discrimination by individuals who say they were unlawfully screened out. In order for employers to enforce vaccination and comply with EEOC, employers will have to show that their vaccination policy is job related and necessary for their business.
Can Employers Require Vaccination Before Hiring?
Hiring teams may require that new employees be vaccinated before they begin their first day. However, they also must accommodate those who decline to be vaccinated due to disability or religious reasons. If a business were to implement a mandatory policy, it would have to be noted in the job description. It’s also important to note that employers should be aware that it takes a certain amount of time to be immunized after the final vaccine.
If an employer decided to keep a record of vaccinations, the records should be treated confidentially and retained accordingly just like any other medical records. Employers should also check their state and local laws to see whether there is a prohibition. For example, Montana has a law prohibiting employers from requiring employees to disclose their immunization status and barring employers from requiring employees to receive certain types of vaccines or posses an immunity passport. On the other hand, some counties in California require businesses to establish the vaccination status of all staff.
Conclusion
In conclusion, an employer may be legally allowed to ask about vaccination status. However, if the vaccination status of employees doesn’t pertain to job functions or the potential hire won’t be in the office or working remote, then it isn’t a good idea for an employer to ask. An employer can ask applicant if they currently are experiencing COVID related symptoms but asking if an applicant ever had COVID goes against ADA.
Keep in mind that governmental agencies are constantly changing their position on enforcing vaccination status. Therefore, it would be beneficial if businesses kept up to date on the latest regulations and were prepared to modify their workplaces and policies.
The Cornerstone Advantage
If keeping up with ever changing rules and regulations seems challenging, you can trust Cornerstone PEO to have your back. At Cornerstone, we have HR professionals with decades of experience who are experts in navigating the regulatory landscape ensuring you maintain compliance.
As a PEO, risk management is one of our core competencies and you can trust us to have your back. Receive unmatched guidance in regard to changing labor laws. Worry less about compliance and focus more on your business.
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Other PEOs will just add you to their system and send you an invoice. At Cornerstone we assign a professional customer service rep to work with your account. This not only adds more of a human touch, but it also allows us to create custom solutions unique to your business. Got questions? We have a rep to help you answer them. A problem occurred? You have a rep who understands your business and can create an effective solution.
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