The Possible Impact of Vaccination Status on Your Job Search

As you interview for new jobs, you may be asked a new question: Are you vaccinated against COVID-19? You may wonder whether this is a “legal” question to ask. The short answer is yes. Read on for a brief job-seeker’s guide to the complicated world of employer COVID-19 vaccination requirements.

A dizzying array of requirements

On January 13, 2022, the Supreme Court halted a Biden Administration emergency rule that would have required companies with 100 or more employees to require COVID-19 vaccinations or weekly testing at the employee’s own cost. (The court did allow a vaccine mandate to move forward for healthcare workers at facilities receiving Medicare/Medicaid funds.) Elimination of a federal mandate means vaccine requirements are now left up to states, counties, cities, and employers themselves.

Across the U.S., you will find a wide range of scenarios, from governing jurisdictions requiring employer vaccine mandates to governing jurisdictions prohibiting employer vaccine mandates. (Federal employees are currently in an interesting situation. While under a stated vaccine mandate, federal agencies have been directed not to take action to implement it due to the Supreme Court ruling.)

While the courts sort this out, job seekers should know several things:

• Although some jurisdictions are operating under executive orders banning employer vaccine mandates, in general, federal Equal Employment Opportunity (EEO) laws do not prohibit an employer from requiring employees who will physically enter the workplace to be fully vaccinated against COVID-19.
• However, under Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), employers must offer “reasonable accommodations”—that is, they must exempt employees from vaccination requirements for medical or religious reasons.

This is where it gets tricky. Under EEO laws, a potential employer can ask whether a job candidate is vaccinated—but they cannot ask for medical information to accompany proof of vaccine (though the candidate may choose to provide it). Nor can a job candidate be asked why they have chosen not to get vaccinated. The follow-up question could reveal information related to disability or religious beliefs that is illegal to consider in the hiring process.

Best practices you should expect from employers

The Society for Human Resource Management (SHRM) recommends not asking why a candidate is not vaccinated until after a job offer is made. That’s one of several best practices SHRM has published for employers. Another is to only ask job candidates about their vaccination status if existing employees are also asked if they’re vaccinated. That is because vaccine inquiries should pertain to the job and workplace safety. SHRM also recommends employers be transparent about vaccine requirements as early as possible in the hiring process and even include the requirement and information about the availability of accommodations in the job posting.

If you are attending an in-person interview, a potential employer can ask whether you are currently experiencing COVID-19 symptoms because that is a workplace safety issue. However, if you are asked whether you have ever tested positive for COVID-19, that might violate the ADA.

Any information you provide an employer or potential employer regarding your COVID-19 vaccination status or request for accommodations should be kept confidential, just like your Social Security number should be kept confidential. Only those coworkers who have a business reason to know your status should have access to it.

What if you need an exemption for medical or religious reasons?

If you do need to seek accommodation from an employer vaccine requirement, whether for medical or religious reasons, a suitable time to let your new employer know is after you have accepted the position but before your start date. The “reasonable accommodation” process is an interactive process, meaning there may be some back and forth between you and your new employer regarding required documentation. If this is the case, you will want to get started as soon as possible so as not to delay your start date.

Employer vaccine requirements are just another confusing area in the COVID-19 world. Knowing your rights and your potential employers’ rights will take some tension out of the already-stressful hiring process.