Whether due to a government mandate or a self-imposed work rule, every day more employers are requiring employees to be vaccinated against Covid-19.
Employers are eager to attract vaccinated employees to open positions. Employers have analyzed the costs they may save by hiring vaccinated workers. Vaccinated employees are less likely to contract Covid-19 or suffer serious health consequences from the virus, and they are therefore less likely to miss time from work. Employers will also save time and administrative costs associated with processing accommodation requests, paying for testing, or providing time off to employees awaiting tests or vaccines. Employers with government contracts are already required to ensure their workers are vaccinated. For employers with 100 or more employees, new OSHA rules will require their entire work force to be vaccinated against Covid-19 as well, by January 4th. (Alternatively, an employee may undergo weekly COVID testing.)
Between now and then, vaccinated employees will be in high demand. Some job applicants, sensing employers’ eagerness for vaccinated employees, have begun including their vaccine status on resumes, job applications, and social media in order to stand out from the crowd. However, regardless of how attractive vaccinated employees may be, consideration of a job applicant’s vaccine status in hiring decisions may create pitfalls for employers.
Before trying to cut through the red tape of employee vaccinations, employers should be aware that federal and state vaccine mandates require employers to carefully evaluate employee requests for medical or religious accommodations. When an applicant does not list his vaccine status, an employer cannot and should not try to guess why that is. It may be that the applicant has a disability or religious belief that prevents him from being vaccinated. Consideration of vaccine status in hiring decisions may run afoul of the Americans with Disabilities Act or religious protections under Title VII.
The Americans with Disabilities Act prohibits discrimination against a qualified individual on the basis of disability, including “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.” 42 U.S.C. § 12112(b).
Persons with certain disabilities may not be able to be vaccinated. Thus, they would tend to be screened out or disfavored when employers consider vaccine status in hiring decisions. For example, two job applicants are considered for a position. One lists her vaccine status on her resume and the other does not. The hiring manager may want to hire the vaccinated worker because he does not want to run the risk of the “headache” of dealing with weekly testing or other accommodation. But if the applicant has not been vaccinated due to a disability, she may have a claim for disparate treatment.
Furthermore, disparate impact claims are also cognizable under the ADA. To state a claim, a plaintiff must show a “facially-neutral” policy or practice, a statistically significant disparity, and a causal connection. Consideration of applicants’ vaccine status probably does not facially discriminate against people with disabilities. However, giving a preference to people who have included their vaccine status could cause people with disabilities that prevent vaccination to be disfavored in the hiring process. If qualified individuals with a disability apply and are rejected at statistically significant rates because of consideration of vaccine status, they may be able to state a claim that the hiring process violates the ADA.
The ADA also contains specific provisions for when employers may inquire about medical information. Generally, medical information should not be obtained by the employer until after a conditional job offer is made. Then medical information may be obtained 1) to begin the reasonable accommodation interactive 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 accommodation of people whose sincerely held religious beliefs prevent vaccination. Title VII recognizes both disparate treatment and disparate impact claims. The EEOC has tended to interpret “sincerely held religious beliefs” broadly. Courts have become increasingly willing to evaluate whether a religious belief is sincerely held. However, for employers this is a minefield and should generally be avoided. Inquiries into whether a belief is “sincerely held” often devolve into claims of harassment.
An individual who has not been vaccinated, but is otherwise qualified for the position, can often be reasonably accommodated under the ADA or Title VII. Experience over the last two years has shown that unvaccinated employees can be reasonably accommodated. Reasonable accommodations may include weekly testing (as in the newly issued OSHA ETS), mask requirements, social distancing, installing plexiglass barriers, modified work schedules, or remote work.
Under the new OSHA standard and prior federal mandates for government contractors, by early 2022 most employees will be required to be vaccinated or submit weekly negative Covid-19 tests. But this does not relieve employers of the duty to accommodate disabilities or religious beliefs.
In order to avoid discrimination claims, employers should:
- Include in job postings whether compliance with the OSHA ETS or other federal or state mandate is a job requirement, subject to applicable legal exemptions.
- Include in job postings that applicants should not include their vaccination status on resumes or job applications and that vaccination status will not be considered in hiring decisions.
- A blind application process – where photographs, demographic, and other personal data is redacted – is often the best way to remove bias from hiring decisions. If an employee offers vaccination information, it should be redacted.
- Wait until after a conditional offer is made to inquire into accommodations for disabilities or religious beliefs.
- Always store medical information in a separate file and treat it as confidential.