Should Employers Ask Applicants About Vaccination Status?

Parker Poe Adams & Bernstein LLP
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Parker Poe Adams & Bernstein LLP

As more employers are considering (or being legally required to consider) implementing COVID-19 vaccination mandates, they should also consider if and how to ask job applicants about their vaccination status. The federal Equal Employment Opportunity Commission has said that vaccination status is not a protected medical inquiry under the Americans with Disabilities Act, meaning that employers can ask applicants even without demonstrating business necessity. If the employer has imposed a vaccine mandate, it can and should notify applicants of this requirement and ask about current vaccination status as part of the hiring process. Even if the employer has not implemented a mandate, it is entitled to ask applicants whether they have been vaccinated and use this information as part of the hiring process, subject to several additional steps.

First, the questions asked to applicants about their vaccination status should make clear that unvaccinated persons may request medical or religious exemptions from the requirement, and that these requests will be considered on a case-by-case basis. Second, the initial interviewer should not ask questions intended to determine why the person has not been vaccinated, if such questions could result in disclosure at the interview stage of an underlying medical issue. Finally, employers should not pick and choose among applicants to ask about vaccination status. If a job candidate asked this question is rejected in favor of an applicant who was not, that person may believe that the questions were a pretext for not hiring them based on another discriminatory motive.

Overall, the employer’s Human Resources Department should standardize questions regarding vaccination status, and it should train hiring managers on appropriate ways to communicate company policy and ask applicants about their vaccination status.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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