Constangy, Brooks, Smith & Prophete, LLP

I'm not sure the ADA will let you do that.

There has been a lot in the news lately about job applicants who include their COVID-19 vaccination status on their resumes, employers who ask applicants for that information, and employers who refuse to consider anyone for hire who doesn't include their vaccination status on their resumes.

The comments from employment lawyers who are quoted in these articles can be summarized as follows:

  • "Be careful, employers. You might be discriminating against an employee who couldn't get vaccinated for a medical or religious reason, which would violate the Americans with Disabilities Act or Title VII, as the case may be."
  • "Be careful, employers. You might inadvertently learn about other medical conditions the applicant has -- or the applicant's religious beliefs -- which could taint your hiring decision."

I don't disagree with either of these points, but I think there is an even simpler answer for employers.

The ADA, as it has been consistently interpreted since the 1990s, says employers can't ask for medical information at the applicant stage of the hiring process.

Let's put aside the applicant who voluntarily discloses that he or she has been vaccinated. If the applicant chooses to do that, and as long as the employer didn't require or request it, and gave fair consideration to applicants who didn't disclose, the employer should not have any problem under the ADA.

But if the employer requires or requests that information from an applicant -- or refuses to consider for hire an applicant who has not disclosed that information -- then that does arguably violate the ADA requirements on pre-employment medical inquiries and examinations, which apply to all individuals, whether they have disabilities or not.

"But, Robin!" you may exclaim. "As you have written many times before, the Equal Employment Opportunity Commission has said that employers may ask employees for their vaccination status, may ask for proof of vaccination, and may even fire employees who refuse to get vaccinated (provided that they don't qualify for a reasonable accommodation)."

"Why," you continue, "wouldn't the same rule apply to employers who are screening employment applications?"

The answer comes from the ADA itself. The ADA has rules about medical information that employers can request, and the rules are different depending on whether the individual is a job applicant, someone who has received a conditional offer of employment, or a current employee.

Here are the rules. I like to envision them as a window with different degrees of closure.

via GIPHY

Applicant stage: Window slammed shut. The employer can't make "disability-related inquiries" of an applicant unless another federal law requires it to do so. (A "disability-related inquiry" is anything that would tend to elicit information about a disability. That's why employers stopped asking how many days an applicant missed work at a previous job due to illness. Or asking applicants to list all elective surgeries they've had. In other words, the standard -- as applied in real life -- is much stricter than just asking the applicant whether he has a disability.)

Only the most innocuous "medical information" can be requested before an offer of employment has been made -- for example, if an applicant shows up for a job interview with a cast on her leg, it would not violate the ADA for the interviewer to say, "Oh, man. How did you break your leg?" It also doesn't violate the ADA for the employer to ask an applicant, "How are you doing?" (Good to know!) But just about anything else is verboten, including follow-up to these innocent questions. 

The first rule of the pre-offer window: There is no pre-offer window.

For the same reason, I would argue that it violates the ADA for an employer to refuse to consider for hire an applicant who did not "voluntarily" disclose "disability-related" information. This is strikes me as just a more sophisticated way of getting around the "no-medical-information-at-the-applicant-stage" rule.

"Have you been vaccinated for COVID-19?" seems to be all right if the answer is yes. But if the answer is "No, I can't, because I've been getting chemotherapy, and I'm immunocompromised . . ." Well, you get the idea. The question itself seems to be likely to elicit information about a disability, applying the very strict standard that has applied in the past. And, if so, the employer is not even allowed to ask.

Post-offer stage: Tear open the shutters, and throw up the sash! Once a conditional offer of employment has been made, just about any medical question is fair game. The employer can also send the offeree for a physical or psychiatric examination. And the examination doesn't even have to be relevant to the job!

Let that fresh air in, baby!

The only limitations at this stage are (1) the same information must be requested of all offerees in that same job category -- in other words, you can't single out a particular offeree -- and (2) the information cannot be used to discriminate against the employee -- for example, by withdrawing a job offer after you learn that the applicant had a hysterectomy five years ago.

The post-offer stage would obviously be the ideal time to ask whether the individual has been vaccinated against COVID, or whether the individual at least intends to do so, and if not whether reasonable accommodations might be appropriate.

During employment: Cracked a bit. Once the individual starts work, the employer is again under restrictions about the medical information it can request. However, it's not as restricted as it was at the applicant stage. An employer can request medical information if doing so is "job related and consistent with business necessity."

"When is a window not a window?" "When it's ajar."

So, if, say, an employee claims that his poor performance is due to a disability and requests reasonable accommodation, the employer can ask about the nature of the disability, engage in the interactive process with the employee, and even send the employee for a medical examination. The employer can also obviously get information necessary to determine whether an employee needs leave under the Family and Medical Leave Act for a serious health condition, to handle a workers' compensation claim, or to determine whether an absence from work should be excused or unexcused. 

The employer is also allowed to request medical information from employees in connection with a voluntary wellness program.

And the employer can ask current employees whether they have been vaccinated against COVID-19, ask for proof of vaccination, ask where they are in the process if they have not been fully vaccinated yet, and take appropriate action (reasonable accommodation, administrative leave, or termination of employment) if the employee is not vaccinated.

Because the rules for current employees and job applicants are so different, I don't think the EEOC's position on current employees necessarily applies to applicants. I'd love to hear what my fellow ADA nerds think about this issue.

Meanwhile, here are some hiring tips that should help employers who want to "stay safe":

via GIPHY

No. 1: DON'T ask about vaccination at the applicant stage. You might even want to post a notice telling applicants not to volunteer such information.

No. 2: If you require employees to be vaccinated, DO post a notice on your application sites informing one and all that you require employees to be vaccinated, with only limited exceptions. (Or "with exceptions only as required by law.") That should alert anti-vaccination applicants who aren't entitled to reasonable accommodations to select themselves out of the process.

No. 3: DO ask about vaccination status at the post-offer stage. You can also explore 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 ground for withdrawing the offer of employment. Heck, if you require post-offer medical examinations, you could even have your offerees vaccinated as part of the examination. With their prior consent, of course.

No. 4: DO continue to follow the EEOC guidance with respect to your current employees. Also, whenever (if ever) the Occupational Safety and Health Administration issues its Emergency Temporary Standard for employers with 100 or more employees, you'd need to comply with that if you have 100 or more employees. And, if you're a federal contractor, do everything Cara Crotty tells you. (And sign up for her webinar, which is only four short days away!)

Image Credits: From flickr, Creative Commons license, photo of Andrew Wyeth's "Wind From the Sea" (1947) by Irina. Other still images from Adobe Stock.

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