When asked some employers state that they are allowed to ask applicants and employees about their vaccination status. Others state that they are not allowed to do so as it violates the Equal Employment Opportunity Commissions (EEOCs) laws. While under normal circumstances the latter would be true, the EEOC did release COVID-19 guidelines which states that under both the Americans with Disabilities and its Amendments Act (ADAAA), and the Genetic Information Nondiscrimination Act (GINA), employers are allowed to ask current employees about their vaccination status, thus is not an inquiry that violates either law. While the EEOC further clarified in May of 2021, that asking applicants about their vaccination status was not in violation of the ADAAA, there are several things that an employer may want to consider before asking the question so as not to encourage additional conversations about disability status, which is not legal. So, while employers are allowed to ask both applicants and employees about their vaccination status, there are several things that need to be addressed in order to properly prepare for asking the question.
Before an employer begins asking questions of applicants related to their vaccination status there are several things that they want to make sure that they understand.
- First, employers should make sure that they understand state laws related to vaccine status. For example, lawmakers in Montana have enacted a statute prohibiting employers from requiring or inquiring about vaccination status. However, in Santa Clara County, California there is a statute that requires all businesses located within the county to inquire on the vaccination status of employees. Several other states have passed laws prohibiting state agencies or entities from requiring their employees to be vaccinated, but these laws do not apply to private employers.
- Secondly, before an employer starts to ask questions related to vaccination status, they may want to also determine why they are asking? Is there a legitimate business reason for asking and is the inquiry related to the job for which the applicant is applying? Has the organization mandated vaccinations for all employees, or is the industry one that is required to make sure that all employees are vaccinated, e.g., healthcare workers in California?
- Making sure that the correct recruiting and hiring processes are in place is an important part of the process with regards to applicants.
- If an employer mandates that all employees be vaccinated then they must list such in the job posting as a condition of employment. Within the job posting employers will also need to state that they are an Equal Opportunity Employer (EOE) and that reasonable accommodations will be considered as part of the application process.
- Employers may also add a section on their employment application asking applicants to simply check a box with a “yes” or “no” as to whether they have been vaccinated and boosted and with a statement that the organization will make reasonable accommodations for new hires with a valid medical or religious reason who have marked “no”. In addition, the employer may also want to make a statement on the employment application asking the applicant to simply provide a “yes” or “no” answer and not to provide any additional information, so as to not violate laws under the EEOC.
- During the verbal interview process employers are encouraged to make sure that they are not inquiring as to the applicant’s vaccine status, but stating that “If you are hired, we will require you to prove that you have received the COVID-19 vaccination and booster, or have a valid religious or medical reason not to be vaccinated.” Again, instructing the applicants to not reveal information about their vaccine status and that the employer is only informing them of what the organization’s expectations are before the applicant begins work is sufficient and completely within the guidelines of the EEOCs guidelines as they relate to COVID-19 and vaccinations.
- Once an offer has been made to an applicant, or now a candidate for employment, is the ideal time to ask whether the individual has been vaccinated against COVID-19, or whether the individual at least intends to do so, and if not whether reasonable accommodations might be appropriate. Once a conditional offer of employment has been made to a candidate, the employer may send the candidate for a physical or psychiatric examination and the examination does not have to be relevant to the job at hand. The only thing that employers need to remember is that they need to treat all candidates consistently, e.g., the same information must be requested of all candidates in the same job category, and the information obtained may not be used to discriminate against a candidate. At the post offer stage employers may explore the possibilities for reasonable accommodation and decide whether a refusal to be vaccinated in a timely manner for a non-medical or non-religious reason should be grounds for withdrawing an offer of employment.
So, how does an employer ask current employees if they have been vaccinated and boosted? First employers must decide whether they are going to ask employees to volunteer this information, or if they will require disclosure. Then they need to decide how they will collect the information. Are they going to utilize surveys, forms, request signatures on attestations, or make copies of vaccination cards? When asking questions on surveys, forms, or attestations, employers may want to ask targeted questions asking employees to categorize themselves as follows:
- Fully vaccinated and boosted and will provide required confirmation
- Partially vaccinated and will provide confirmation when fully vaccinated and boosted
- Not yet vaccinated or boosted, but intending to get vaccinated and boosted
- Not intending to be vaccinated or boosted due to a medical or religious reason
- Not intending to be vaccinated or boosted and do not have a medical or religious reason
As stated in other sections of this article, the survey, form, or attestation should include a statement that the employee should not provide any other medical, genetic, or disability-related information in the response to the inquiry. If vaccination is required, employers should identify a date by which employees should have received their first dose, second dose, and booster, as appropriate. Also, when asking employees to provide their actual proof of vaccination, employers are not allowed to ask any unnecessary questions about an employee’s medical or genetic status or related disabilities. Questions about medical, genetic, or related disabilities may only be asked when they are job-related and consistent with business necessity. Keep in mind that employees are also not permitted to ask other employees if they have been vaccinated or boosted. Vaccine status is considered confidential medical information under the ADAAA. Thus, employers who collect medical information related to vaccine status must store copies of all records in accordance with ADAAA guidelines. All medical information must be maintained separately from an employee’s personnel file, and employers must maintain records in a safe place where they cannot be accessed by anyone other than the persons responsible for such records within the organization.
Employers should keep in mind that they are entitled to know who among their employees are vaccinated so that they can protect their workforce and help ensure a safe work environment. But they need to make sure that they are approaching the question a little differently with applicants in order to make sure that they are compliant with all laws under the EEOC. Making sure that they train their managers to ask appropriate questions without inquiring about a person’s medical, genetic, or related disabilities is paramount.
For additional information on whether employers may ask applicants or employees about their vaccination status, please contact us at www.NewFocusHR.com.
Written By: Kristen Deutsch, M.B.A., CCP