Can Businesses Ask for Medical Information on Applications?
November 16th, 2021
As more and more businesses require proof of vaccination for customers and staff, many are questioning the legality of asking job applicants and employees about their vaccination status, especially surrounding ADA law.
While it is legally permissible to ask a job applicant about vaccination status, lawyers generally recommend against asking these questions during an interview. While the question itself is permissible, it can easily lead to a discussion of the applicant’s disability status or religious beliefs, topics that are prohibited.
If you want to ask about an applicant’s vaccination status, there are ways to do it. But it is best not to ask about vaccination status during the interview.
Likewise, if you wish to require that all staff be vaccinated, you can ask current employees about vaccination status as long as the inquiry is “job related and consistent with business necessity.” But the best time to ask a job applicant about their vaccination status is after a conditional offer has been made.
EEOC and ADA Law Provide Guidance on Questions About Medical Information
The Equal Employment Opportunity Commission (EEOC) has consistently said that an employer can require proof of vaccination, can ask employees about their vaccination status, and can even fire employees who refuse to get vaccinated (as long as they do not qualify for a reasonable accommodation).
But an employer should not ask a job applicant about their vaccination status because the question might lead to a discussion that reveals an applicant’s disabilities or religious beliefs. Of course, there will inevitably be situations in which an applicant voluntarily discloses their vaccination status. But as long as the employer did not ask for it and gave fair consideration to applicants who did not disclose their vaccination status, there is no problem under the ADA law.
An employer who refuses to consider the application of someone who did not disclose their vaccination status or makes hiring decisions based on an applicant’s vaccination status may run into problems. These practices potentially violate ADA requirements on pre-employment inquiries and examinations, which apply to all applicants regardless of whether or not they have a disability.
Applicants, Conditional Employees, and Current Employees Are Treated Differently
The ADA law specifies the information an employer can request of an applicant, someone who has received a conditional offer of employment, and a current employee.
Job Applicants. Under the ADA law, employers are not permitted to ask “disability-related inquiries” unless there is a federal law that requires them to do so. A disability-related inquiry is any question that could elicit information about an applicant’s disability. While asking an applicant if they have been vaccinated against COVID-19 may be acceptable, the question could easily lead to a discussion about the applicant’s medical history, which could violate the ADA law, or religious beliefs, which would violate the Civil Rights Act.
After a Conditional Offer. Once a conditional job offer has been made, questions about the applicant’s medical conditions are acceptable, and an employer can even require that the applicant submit to a physical or psychiatric evaluation. To avoid allegations of discrimination, be sure to request the same information from all people who receive a job offer in the same category. Information about a disability cannot be used to discriminate against an employee.
Current Employees. Once an applicant is hired, the employer is once again limited on the information they can request. An employer can ask questions that are “job-related and consistent with business necessity.” An employer can ask an employee whether they have been vaccinated against COVID-19, request proof of vaccination, ask whether the employee intends to receive the vaccine, and can take appropriate action (reasonable accommodation, administrative leave, or termination) if the employee is not vaccinated.
Best Practices to Avoid Claims of Discrimination in Hiring
To protect your business against allegations of discriminatory hiring practices, follow these best practices:
Do not ask applicants about vaccination status during an interview.
If you require that employees be vaccinated, post a notice on your application site advising them of this fact.
After an offer has been extended is the best time to ask about vaccination status.
Follow EEOC guidelines with respect to current employees and their vaccination status.
The EEOC has specified that asking an applicant if they are vaccinated is not a disability-related inquiry and does not violate the ADA. If you decide to ask applicants about their vaccination status, be sure to have a legitimate business reason for doing so, and that the inquiry is related to the job for which the person is applying.
Another alternative is to ask applicants about their vaccination status on a paper or electronic application. In this way, you can ask about vaccination status while avoiding the potential that questions about whether a person has been vaccinated will lead to other questions that are prohibited.
The best time to ask an applicant about their vaccination status is after a conditional has been made but before the person has formally been hired.
RKPT: Experienced Labor and Employment Lawyers
If you are considering asking job applicants or current employees about vaccination status and have questions, the lawyers at RKPT can help. Our attorneys offer advice and representation to employers of all sizes. We help develop sound workplace policies and procedures to ensure your business stays up-to-date on ever-changing workplace laws.