Asking applicants for vax status? Not so fast!

Excerpted from a Constangy Brooks Smith & Prophete LLP blog by Robin Shea

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.

Comments from employment lawyers 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 of Title VII.”

• “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.”

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 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 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.

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 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.

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. 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.

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!

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.

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.”

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

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

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, post a notice on your application sites informing one and all that you require employees to be vaccinated, with only limited exceptions.

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.

No. 4: Do continue to follow the EEOC guidance with respect to your current employees. Also, whenever 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.

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