In interviews with prospective employees, can an employer ask about their COVID-19 vaccination status?

The short answer is a qualified yes. The Americans with Disabilities Act (ADA) prohibits you from asking applicants questions 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 isn’t a disability-related inquiry under the ADA.

Just like with most areas of the law, however, you should be careful about how you ask the question, and how you follow up on it. For example, if you ask prospective employees why they didn’t get the COVID-19 vaccination, it may lead to further questions about health conditions or disability status.

Furthermore, if you condition a prospective employee’s job offer on vaccination status, it may lead to potential discriminatory practices, such as disability or religious discrimination. The key should be to focus on the well-being of the workforce and the type of job environment you have. If you are seeking to hire someone for outdoor work that doesn’t require close contact with others, that is far different than seeking to hire someone to work in a crowded manufacturing plant.

Given the continued push to get as many people vaccinated as possible, it’s also permissible to condition employment on vaccination status. You should tread lightly here as well, however. It’s best practice to ensure job postings or other help-wanted advertisements inform prospective employees any job offer would be contingent on vaccination status. In addition, you must provide accommodations for those who cannot receive the vaccination for disability or religious reasons.

For more current information regarding dealing with COVID-19 in the workplace, you can visit the EEOC’s FAQ section on its website.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.