Whether it’s due to a government mandate or a self-imposed work rule, every day more and more employers are demanding that their employees be vaccinated against Covid-19.
Employers are eager to attract vaccinated employees to vacant positions. Employers analyzed the costs they could save by hiring vaccinated workers. Vaccinated employees are less likely to contract Covid-19 or experience serious health consequences from the virus, and therefore they are less likely to be absent from work. Employers will also save time and administrative costs associated with processing accommodation requests, paying for tests, or granting time off to employees waiting for tests or vaccines. Employers with contracts with the government are already required to ensure that their workers are vaccinated. For employers with 100 or more employees, new OSHA rules will require all of their staff to also be vaccinated against Covid-19, by January 4. (Alternatively, an employee can undergo a weekly COVID test.)
Until then, vaccinated employees will be in high demand. Some job seekers, sensing employers’ eagerness for vaccinated employees, began to include their immunization status on resumes, job applications and social media in order to stand out from the crowd. However, regardless of the attractiveness of vaccinated employees, factoring a candidate’s vaccination status into hiring decisions can create pitfalls for employers.
Before attempting to reduce the red tape associated with employee immunizations, employers should be aware that federal and state vaccine mandates require employers to carefully assess employee requests for medical or religious accommodations. When an applicant does not list his immunization status, an employer cannot and should not try to guess why. The applicant may have a disability or religious belief that prevents them from getting the vaccine. Consideration of immunization status in hiring decisions may violate the Americans with Disabilities Act or religious protections under Title VII.
The Americans with Disabilities Act prohibits discrimination against a qualified person on the basis of a disability, including “the use of qualification standards, employment tests or other selection criteria which exclude or tend to exclude a person with a disability or a category of persons with disabilities unless the standard, test or other selection criteria, as used by the covered entity, are found to be employment-related for the position in question and are compatible with the needs of the company. 42 USC § 12112 (b).
People with certain disabilities may not be able to get the vaccine. Thus, they would tend to be sidelined or disadvantaged when employers consider vaccination status in hiring decisions. For example, two candidates are considered for a position. One indicates her immunization status on her curriculum vitae and the other does not. The hiring manager may want to hire the vaccinated worker because they don’t want to run the risk of a “headache” from weekly testing or other accommodations. But if the applicant has not been vaccinated due to a disability, she may claim disparate treatment.
In addition, disparate impact claims are also recognizable under the ADA. To make a claim, a claimant must demonstrate a “face neutral” policy or practice, statistically significant disparity, and causation. Taking into account the immunization status of candidates probably does not discriminate against people with disabilities. However, giving preference to people who have included their vaccination status could result in disadvantaging people with disabilities who prevent vaccination in the hiring process. If qualified people with disabilities apply and are rejected at statistically significant rates due to consideration of immunization status, they may be able to report that the hiring process violates the ADA.
The ADA also contains specific provisions regarding when employers can inquire about medical information. As a general rule, the employer should not obtain medical information until a conditional offer of employment has been made. Then, medical information can be obtained 1) to begin the interactive reasonable accommodation process; or 2) when medical information is obtained from all applicants. Therefore, employers should avoid obtaining or receiving medical information from applicants until after a conditional offer is made.
Government vaccine mandates also require housing for people whose sincere religious beliefs prevent vaccination. Title VII recognizes both requests for disparate treatment and requests for disparate impact. The EEOC has tended to interpret “sincere religious beliefs” broadly. Courts are increasingly willing to assess whether a religious belief is genuine. However, for employers, this is a minefield and should generally be avoided. Inquiries as to whether a belief is “genuine” often result in allegations of harassment.
A person who has not been vaccinated, but who is otherwise qualified for the position, can often be reasonably accommodated under ADA or Title VII. The experience of the past two years has shown that unvaccinated employees can be reasonably accommodated. Reasonable accommodations may include weekly testing (as in the new OSHA ETS), mask requirements, social distancing, installation of plexiglass barriers, modified work schedules, or remote work.
Under the new OSHA standard and previous federal mandates for government contractors, by early 2022, most employees will need to be vaccinated or submit weekly negative Covid-19 tests. But this does not exempt employers from the obligation to accommodate disabilities or religious beliefs.
In order to avoid complaints of discrimination, employers should:
- Indicate in job postings whether compliance with OSHA ETS or other federal or state mandate is a requirement of the position, subject to applicable legal exemptions.
- Include in job postings that applicants should not include their immunization status on resumes or job applications and that immunization status will not be factored into hiring decisions.
- A blind application process – where photographs, demographics, and other personal data are redacted – is often the best way to eliminate bias in hiring decisions. If an employee offers immunization information, it should be redacted.
- Wait until a conditional offer is made to inquire about accommodations for people with disabilities or religious beliefs.
- Always keep medical information in a separate file and treat it confidentially.