By the way, have you been vaccinated?

We’re sure this has come up hundreds of times, but the question still needs to be asked. When interviewing potential employees, can you ask about their COVID-19 vaccination status?

The answer is, “Yes,” generally speaking. Most hospitals in the U.S. are moving in the direction of vaccine mandates following a positive June 12 court ruling involving Houston Methodist Hospital. On August 23, the U.S. Food and Drug Administration officially approved the Pfizer-BioNTech COVID-19 Vaccine, opening the door for public hospitals such as Parkland Health & Hospital System in Dallas to move forward with mandates.

During an interview, you can ask prospective employees about their vaccination status, but please note there could be some risks in doing so.

Under the Americans with Disabilities Act (ADA), you may not ask applicants questions that are likely to reveal the existence of a disability before making a job offer. On the flipside, the Equal Employment Opportunity Commission (EEOC) has stated that simply asking about vaccination status is permissible because it isn’t likely to elicit information concerning a disability since there are any number of reasons why a potential employee may not be vaccinated.

Follow-up questions regarding vaccination status could reveal the applicant hasn’t received the vaccine because of a disability or for religious objections. Such questions should always be job-related and consistent with business necessity.

Eliminating job applicants based on vaccination status is very risky. The applicant could allege they were discriminated against based on a disability under the ADA or sincerely-held religious beliefs under Title VII of the Civil Rights Act.

Requiring written proof of vaccination status is permissible, but please note, such records are treated as confidential under the ADA.

If your company decides to make vaccinations mandatory as a condition of employment, you should say so in all job descriptions so applicants have the opportunity to request a reasonable accommodation for a disability or religious beliefs.

As always, clear communication in advance with your job candidate is key. Be safe out there!

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.