Have you considered requiring new employees to present proof of vaccination as a condition of employment or giving preference to those applicants who have been vaccinated?
The Equal Employment Opportunity Commission (EEOC) provides that employers can mandate that employees be vaccinated for COVID-19, with certain exceptions for employees who cannot get the vaccine due to disability or sincerely held religious belief. The EEOC further states that requiring an employee to show proof of COVID-19 vaccination is not a disability-related inquiry (but employers beware! Limit the inquiry to only whether or not the employee is or will be vaccinated. Do not ask why or why not or other follow up questions that could elicit information about underlying health conditions).
It is reasonable to conclude that if an employer can mandate vaccinations for existing employees, it can also require applicants to provide proof of vaccination as a condition of employment. Employers should, however, approach any vaccination requirement cautiously.
First, it is important to note that while the EEOC is a great source of federal guidance, employers must also comply with state and local laws in jurisdictions in which they operate. Some locations have implemented or considered legal restrictions on vaccination requirements, so an employer must initially ensure they can actually enforce any such workplace policy.
Employers who can and wish to mandate vaccinations in the workplace (with exceptions as noted above) should still carefully scrutinize employment outcomes for any disparate impact. Even well-intentioned and seemingly neutral policies can sometimes have unfair implications for members of protected classes. Accordingly, best practice is to implement only such rules that are job-related and consistent with business necessity.
It is further important to remember that applicant and employee vaccination records should be treated as confidential. Again, to enforce a simple vaccination requirement, employers do not need or want to acquire medical information beyond proof of vaccination. Employers should instruct employees and applicants to supply only proof of vaccination and not other information about underlying health conditions unless additional information is subsequently requested (for example to engage in the interactive process under the Americans with Disabilities Act to provide accommodation to those with disabilities).
As with all things COVID-19-related, best practices are subject to change as additional information and guidance come down. Employers should seek tailored legal advice to determine whether vaccination requirements are suited to their workplace.
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