Q: I am accepting applications for open job positions.  Can I require new employees to be vaccinated against COVID-19 before reporting to work?

A: Generally, yes. In California, an employer can mandate that all employees, including applicants, be vaccinated against COVID-19, as long as the employer allows for vaccine exemptions for employees and applicants whose disabilities or sincerely held religious beliefs preclude them from receiving the COVID-19 vaccine.  An employer who wants to require vaccination for new hires should consistently impose the same requirements on current employees.  It is important for employers to assess the risk of unvaccinated workers in the particular workplace when making decisions about COVID-19 vaccine mandates.  Some employers mandate vaccines in situations where unvaccinated employees pose a significant risk of harm to others in the workplace, especially when they interact with individuals with high risk of contracting COVID-19.

If your company has mandated vaccines for all employees, make sure this requirement is made clear to potential candidates from the beginning of the recruiting process.  For example, employers with vaccine mandates should list on the job posting that full vaccination is a condition of employment.  Such employers should also make it clear in the job advertisement that the company is an Equal Opportunity Employer and reasonable accommodations for disabilities and sincerely held religious beliefs will be considered.

Employers should exercise caution in asking applicants about their vaccination status.  Although such an inquiry is not unlawful, employers cannot ask applicants questions that are likely to reveal the existence of a disability before making a conditional job offer.  For this reason, an employer should not ask an applicant if the applicant will be applying for an exemption from the vaccine due to a disability or sincerely held religious belief, and exemption forms should not be given to applicants until after the applicant is interviewed and provided a job offer.  The offer can be conditioned on the new employee’s compliance with the company’s vaccination policy on or before the first day of work.

The rules surrounding vaccination requirements for new hires can be confusing and often lead to more questions.  Additional tips include the following:

  • Ensure that potential candidates are aware that the company will consider medical and religious exemptions to the vaccination requirement, consistent with federal and state law.
  • Define the time frame in which the new hire must be fully vaccinated.  For example, require full or partial vaccination prior to the first day of work.  Identifying the consequences for new hires that fail to meet this requirement is also prudent.
  • Make sure you have a clear process in place for providing information to applicants, once a conditional job offer has been made, on how to request an accommodation due to medical conditions or sincerely held religious beliefs that prevent vaccination.
  • Do not collect proof of vaccination status until after an employment offer is extended and accepted.  Ensure that the confidentiality of such information is maintained when received.
  • Consider providing your hiring team with a simple script to make it clear how to appropriately ask and respond to questions regarding your vaccination policy.

Being conscious of issues involving COVID-19 vaccination policies can assist employers in developing and implementing their policies, and in applying them to applicants during the pandemic.