As the Covid-19 (And variants) concerns continue, more employers are asking job applicants about their COVID-19 vaccination status in order to protect employees and customers. Employers must know their legal limits before an interview is conducted.
It should be noted that employers should only ask applicants vaccination questions that pertain to the job.
Legal Requirements About Vaccinations
The Americans with Disabilities Act (ADA) prohibits employers from asking applicants questions that are likely to reveal the existence of a disability before making the potential candidate a job offer. However, the Equal Employment Opportunity Commission (EEOC) has clarified that asking employees whether they have received the COVID-19 vaccine is not a disability-related inquiry under the ADA.
It is critical that employers do not overstep their legal bounds. While asking about the vaccination itself will usually be permissible, follow-up questions that may reveal a disability may run afoul of the ADA.
Employers should stay focused on the health and safety of the workforce. Whether asking applicants about their vaccination status is advisable may depend on the employer’s industry, whether employees can socially distance, and the percentage of the workforce that is already vaccinated.
Can an Employer Require Vaccination Before Hiring?
Employers may be able to require that new hires be vaccinated by the first day of work, provided they accommodate those who cannot receive the vaccine for disability or religious-based reasons. If an employer keeps a record of vaccinations, the proof should be treated as a confidential medical record.
Governmental agencies are constantly modifying their guidance. It is important for employers to stay on top of the latest guidance, and work closely with employment counsel to ensure their existing employment policies and practices are up to date and compliant.
Stuart J. Oberman, Esq.
Stuart J. Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 30 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company.
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