In December we addressed the very popular topic of whether employers should require current employees be vaccinated before returning to office. Now, as more businesses are opening up and there are signs of improvement in the economy, some employers may be considering hiring new staff for their existing businesses while others are seeking talent for newly opened businesses. The standard for treatment of existing employees versus consideration of new applicants is dissimilar and warrants further examination.
For entities with a bona fide reason to require vaccination for their employees – i.e., operating in a healthcare environment – an employer may request proof of receipt of a COVID-19 vaccination. If the employee is unable to provide proof, employers are discouraged from prodding with subsequent questions as the employee may unwillingly reveal a disability. In fact, employers who require proof of COVID-19 vaccination may want to warn their employee not to provide any medical information as part of the proof in order to avoid involving the ADA.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance — and there is no reasonable accommodation possible — then it would be lawful for the employer to exclude the employee from the workplace. Exclusion from the workplace does not automatically lead to termination. In fact, employers who cannot provide a reasonable accommodation for employees who cannot get vaccinated will need to seek guidance from their labor law advisor to determine what rights for continued employment may apply under EEOC or other applicable legislation mandated by federal, state or local authorities.
New applicants for employment who cannot provide proof of receipt of a vaccine may legitimately be excluded from consideration for certain employment opportunities regardless of disability or sincerely-held religious belief if the employer determines through an individualized, interactive process that the unvaccinated applicant, if hired, would be a direct threat to his or herself or others at work and there are no other reasonable accommodations that would allow the person to occupy that position from the workplace.
Business owners should recognize this is an evolving situation and should always be in contact with their legal advisors.