You weathered the storm that blew through your workplace when you told your employees they needed to get vaccinated. You read the stories about Delta Air, Chevron, UPS, Goldman Sachs, and other major employers that made full vaccination a condition of employment.1 Like 59% of 1,000 small business owners surveyed, you plan to sidestep future problems by hiring only vaccinated employees.2
You’ve been pleasantly surprised by the many candidates who note on their applications they’ve been vaccinated. You wonder—is it okay to ask applicants who don’t supply their vaccination status if they’ve been vaccinated? You’re not alone in your hesitancy to make job offers when you don’t know a candidate’s vaccination status. According to ResumeBuilder.com, one-third of 1,250 hiring managers surveyed automatically throw out resumes that don’t indicate an applicant’s vaccination status.3
Here’s what you need to know. Although the Equal Employment Opportunity Commission (EEOC) allows employers to ask employees about their vaccination status and for proof of vaccination, the rules differ for applicants.4
When interviewing applicants, you can’t ask for medical information or make disability-related inquiries. That’s why you don’t ask job candidates “how many sick days did you take at prior jobs?” By asking, “are you vaccinated?” you might learn the applicant couldn’t get vaccinated for medical reasons or because of a sincerely held religious belief. These answers can taint your hiring decision with Americans with Disabilities Act or Title VII (Civil Rights) discrimination violations.
This picture changes when your applicants voluntarily disclose their vaccination status, as long as you don’t require or request them to do so and fairly consider candidates who don’t voluntarily disclose their vaccination status.
As an employer, you have two workarounds if you want a fully vaccinated workforce, outside of those with legally protected exemptions. If you require all employees to be vaccinated, post a notice on your application sites informing applicants you require employees to be vaccinated with exceptions only as required by law. This allows applicants who don’t want to get vaccinated to not waste their or your time.
Once you make a conditional job offer the picture changes again. During this post-offer stage, you can ask if the applicant has been vaccinated against COVID or intends to do so, or if not, whether reasonable accommodations would be appropriate. Depending on the job for which you’re hiring, you can ask other medical questions if your questions are job related and consistent with business necessity or related to a voluntary wellness program. You can even send your conditional hire for a physical exam if the job duties require a certain level of fitness and you require this of all applicants for specific job categories.
Yes, this means you may need to make post-conditional hire decisions. Once you ask your conditional hires if they have been vaccinated against COVID-19, or where they are in the process of getting vaccinated, you can take appropriate action whether that’s reasonable accommodation, paid or unpaid administrative leave or termination.4
The vaccination issue—it’s a minefield for employers, employees, and applicants. Exercise caution with questions that might detonate your hiring process.
1 https://news.yahoo.com/companies-requiring-proof-of-vaccination-from-employees-185710054.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAFHQ4mxb4O4aAbe8OTEtQPThaXHMmgFmXsJU1s_zrxMAFI72JfZjVAN1NUzmClSZLVXeyWjEvXV9ttAHSeTYQ19ViTEiRQ1bD834yXH9xrmRSeFYJK_DWfyCuHmYvgcRGawXsQzufLsW0abCeICOjxpLRj2i9NImQJOvyunkDObR
2https://digital.com/small-businesses-to-only-hire-vaccinated-employees/
3https://www.rgj.com/story/news/money/business/2021/10/19/most-small-businesses-only-hire-workers-coronavirus-vaccination-shot-survery/8514686002/
4 https://www.lexology.com/library/detail.aspx?g=2390ac54-8e9c-4c99-80a4-02d42919a3ae
