The Rules Don’t Apply to Those Who Apply: Asking Applicants for Their COVID-19 Vaccination Status

Can you ask an applicant their COVID-19 vaccination status?

November 4, 2021

By now, most employers have at least broached the question of whether they can request employees’ vaccination status. While employers can in fact request this medical information from employees and even terminate employees who do not comply with disclosure or vaccine requirements (with a few exceptions), the same does not apply when dealing with applicants. Simply put, the rules are different for applicants in comparison to those who have received a conditional offer of employment or who are already on-the-job.

Applicants have the Americans with Disabilities Act (the, “ADA”) to thank for this added protection. Pursuant to the ADA, an employer cannot make any “disability-related inquiries” of applicants unless another federal law requires it to do so. A “disability-related inquiry” is anything that would tend to elicit information about a disability. This means, the standard is much higher than simply prohibiting the direct question, “Do you have a disability?” While the question, “Have you been vaccinated for COVID-19?” might be a perfectly fine question if the response were always “Yes,” if the answer is “No, I can’t because I am undergoing chemotherapy….”, the employer has just solicited disability information in violation of the ADA. Consequently, an applicant should never be asked whether or not they are vaccinated.

Once a conditional offer of employment is made, most medical information is fair game, including vaccination status. In fact, the only limitations at this point are that (1) the same information be requested of all offerees in the same job category; and (2) that information is not used to discriminate against an offeree. For these reasons, the post-offer stage is the ideal time to inquire as to whether an individual has been vaccinated for COVID, whether they intend to do so, and whether reasonable accommodations may be appropriate.

Once an individual is hired, an employer remains free to ask whether an employee has been vaccinated, ask for proof of vaccination, ask whether they intend to get vaccinated, and take appropriate action if the employee is not vaccinated. As in the conditional offer stage, employers should make the same request of all employees in the same job category and not use the information to discriminate.

If you have questions about the ADA and its impact on your organization’s vaccination policy, please contact Victoria Finlinson at vbf@clydesnow.com or (801) 433-2413.