Can Employers Ask Job Applicants About COVID-19 and Vaccination?

More employers are asking job applicants about their COVID-19 vaccination status as they try to protect co-workers and customers. But before you add this to your list of interview questions, know that there are legal limits to such questions. Employers should only ask applicants vaccination questions that pertain to the job. So, if the company is not asking employees if they have been vaccinated, it should not pose that question to applicants, either.

Legal Requirements About Vaccinations
The Americans with Disabilities Act (ADA) prohibits employers from asking applicants questions that are likely to reveal the existence of a disability before making a job offer. The Equal Employment Opportunity Commission (EEOC) has clarified that asking employees whether they have received the COVID-19 vaccine is not a disability-related inquiry under the ADA. Conditioning a job on vaccination status could lead to accommodation requests—both disability- and religious-based—and claims of discrimination by individuals under various protected bases who say they were unlawfully screened out.

Can an Employer Require Vaccination Before Hiring?

Employers may require that new hires be vaccinated by the first day of work, provided they accommodate those who can’t receive the vaccine for disability- or religious-based reasons. EEOC guidance provides that employers may lawfully mandate vaccinations. If a mandatory policy is being implemented, make sure the job description notes that being vaccinated is part of the job description.

In some states, such as Hawaii, retaliating against an employee because of refusal to take a vaccination could lead to strong claims of wrongful discharge in violation of public policy and whistleblower laws.

Inquiring About COVID-19

An employer can ask applicants if they currently have COVID-19 or COVID-19 symptoms. However, asking applicants whether they have ever had COVID-19, as in a past infection, is likely prohibited by the ADA.