Question: Can I ask job applicants if they have received the COVID-19 vaccine?
Answer: The short answer is yes, within limits. The Equal Employment Opportunity Commission’s (EEOC) guidance on vaccinations states that employers may lawfully mandate vaccinations, ask employees if they have been vaccinated, and ask employees to provide proof of vaccination.
Employers are required under federal, state, and local laws to provide a safe and healthy workplace for employees and patrons. Before deciding whether to ask applicants about their vaccination status, employers should first consider why an applicant’s vaccination status is relevant to the position or workplace. An employer’s focus should be on the health and safety of the workplace. Asking applicants about their vaccination status is appropriate if the employer has a mandatory vaccination policy that is job-related and consistent with business necessity.
While most California employers are currently not mandating vaccines for employees, such a mandate is generally lawful. This is because of the employers right to implement lawful workplace policies that protect the health and safety of employees and patrons. Accordingly, employers may require employees to get the COVID-19 vaccine so long as the employer does not infringe upon the protections afforded to employees under federal, state, and local law.
If an employer adopts a mandatory vaccination policy, it may also ask job applicants about their vaccination status. The EEOC has clarified that asking employees if they have received the COVID-19 vaccine is not a disability-related inquiry under the American with Disabilities Act (ADA). Therefore, employers with mandatory vaccination policies may ask applicants whether they have been vaccinated, but should refrain from asking any follow-up questions that are not job-related and that may reveal a disability.
Employers who require employees to be vaccinated should be clear about this requirement when recruiting and should inform applicants of the vaccine requirement as soon as possible. When posting the position, the employer should consider including in the job post that vaccination is a requirement of the job and that accommodations due to disability or religious reasons will be evaluated in compliance with the law. Employers should not require applicants to bring proof of vaccination to the job interview. The interview should be focused on the applicant’s qualifications for the position. Employers should wait until after an applicant is offered a job to request proof of a COVID-19 vaccination from the applicant.
Employers who extend an offer to an applicant conditioned on the applicant getting vaccinated may need to provide an accommodation if the applicant is unable to get vaccinated because of a disability or bona fide religious reason. Under the EEOC’s guidelines, an employer cannot require an employee to get vaccinated if the employee has a disability protected by the ADA that prevents the employee from getting vaccinated, or if the employee has a sincerely held religious belief, practice, or observance protected by Title VII of the Civil Rights Act of 1964 that prohibits vaccinations. California’s Fair Employment and Housing Act (FEHA) also protects individuals from discrimination, harassment and retaliation based on religion and disability. The employer will need to conduct an individualized assessment to determine if the vaccination refusal is protected under the ADA, Title VII, or FEHA, and whether a reasonable accommodation can be made for the candidate.