Q: Can I ask applicants if they received the COVID-19 vaccine?
A: The short answer is yes, within limits. The Equal Employment Opportunity Commission’s vaccination recommendations state that employers lawfully mandate vaccinations, employees can ask if they have been vaccinated, and require workers to provide proof of vaccination.
According to federal, state and local laws, employers are obliged to offer their employees and customers a safe and healthy workplace. Before deciding to ask applicants about their vaccination status, employers should first consider why an applicant’s vaccination status is relevant to the job or workplace. An employer’s focus should be on occupational health and safety. It makes sense to ask applicants about their vaccination status if the employer has a job-related and compulsory vaccination policy that is compatible with business needs.
While most California employers don’t currently require vaccines for employees, such a mandate is generally lawful. This is due to the employer’s right to implement lawful workplace policies that protect the health and safety of employees and customers. Accordingly, employers can request that employees receive the COVID-19 vaccine as long as the employer does not violate the protective measures that are granted to employees under federal, state and local law.
If an employer makes vaccination compulsory, they can also ask applicants about their vaccination status. The Equal Employment Opportunity Commission made it clear that asking employees whether they received the COVID-19 vaccine is not a disability-related investigation under the Americans with Disabilities Act. Therefore, employers with mandatory vaccination guidelines can ask applicants whether they have been vaccinated, but should not ask follow-up questions that are not job-related and reveal a disability.
Employers who require employees to be vaccinated should be aware of this requirement when hiring and inform applicants as soon as possible of the mandatory vaccination. When posting the job, the employer should take into account that vaccination is a prerequisite for the job and that accommodation is assessed in accordance with the law due to a disability or religious reasons. Employers should not require applicants to bring proof of vaccination to the interview. The interview should focus on the applicant’s qualifications for the position. Employers should wait until an applicant is offered a job to request proof of COVID-19 vaccination from the applicant.
Employers who make an offer to an applicant on condition that the applicant be vaccinated may be required to provide housing if the applicant is unable to be vaccinated because of a disability or for bona fide religious reasons. According to the guidelines of the Equal Employment Opportunity Commission, an employer cannot require an employee to be vaccinated if the employee has an ADA protected disability that prevents the employee from being vaccinated or if the employee is a sincere religious Conviction, practice, or compliance is required under Title VII of the Civil Rights Act of 1964, which prohibits vaccination. California’s Fair Employment and Housing Act also protects individuals from discrimination, harassment, and retaliation based on religion and disability. The employer must conduct an individual assessment to determine whether the refusal to vaccinate is protected under ADA, Title VII, or the Fair Employment and Housing Act and whether reasonable accommodation can be made for the candidate.
Sara Boyns is an attorney at Fenton & Keller in Monterey. This column is intended to answer questions of general interest and is not intended to provide legal advice. Email inquiries to Workplace Law, c / o The Monterey Herald, Box 271, Monterey 93942 or [email protected].
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