(Please also scroll down for my Risk Management Conclusions.)
Making Medical Inquiry Can Violate the Americans with Disabilities Act.
Robin Shea of the Costangy, Brooks employment law firm posted this on Friday, 10/8/21:
https://www.constangy.com/employment-labor-insider/asking-for-vax-status-pre-offer-not
I am copying large portions of the article below. I encourage all employers to read the entire post.
“Asking applicants for vax status? Not so fast, employers.
There has been a lot in the news lately about job applicants who include their COVID-19 vaccination status on their resumes, employers who ask applicants for that information, and employers who refuse to consider anyone for hire who doesn’t include their vaccination status on their resumes.
The comments from employment lawyers who are quoted in these articles can be summarized as follows:
- “Be careful, employers. You might be discriminating against an employee who couldn’t get vaccinated for a medical or religious reason, which would violate the Americans with Disabilities Act or Title VII, as the case may be.”
- “Be careful, employers. You might inadvertently learn about other medical conditions the applicant has — or the applicant’s religious beliefs — which could taint your hiring decision.”
I don’t disagree with either of these points, but I think there is an even simpler answer for employers.
The ADA, as it has been consistently interpreted since the 1990s, says employers can’t ask for medical information at the applicant stage of the hiring process.”
What Medical Information can an Employer Request?
“The answer comes from the ADA itself. The ADA has rules about medical information that employers can request, and the rules are different depending on whether the individual is a job applicant, someone who has received a conditional offer of employment, or a current employee.
Here are the rules. I like to envision them as a window with different degrees of closure.
No. 1: DON’T ask about vaccination at the applicant stage. You might even want to post a notice telling applicants not to volunteer such information.
No. 2: If you require employees to be vaccinated, DO post a notice on your application sites informing one and all that you require employees to be vaccinated, with only limited exceptions. (Or “with exceptions only as required by law.”) That should alert anti-vaccination applicants who aren’t entitled to reasonable accommodations to select themselves out of the process.
No. 3: DO ask about vaccination status at the post-offer stage. You can also explore possibilities for reasonable accommodation and decide whether a refusal to be vaccinated in a timely manner for a non-medical or non-religious reason should be ground for withdrawing the offer of employment. Heck, if you require post-offer medical examinations, you could even have your offerees vaccinated as part of the examination. With their prior consent, of course.
No. 4: DO continue to follow the EEOC guidance with respect to your current employees.”
My Risk Management Conclusions.
The Biden Administration is encouraging (and requiring some) employers to force employees to take Covid vaccines or face penalties, including termination.
The Administration announced on 9/9/21 that the Occupational Safety and Health Administration (OSHA) would be issuing a rule implementing a mandate for any U.S. employer with 100 or more employees to require vaccination. As of 10/12/21, there has been none forthcoming.
Don’t make false representations! Employers must refrain from stating or implying that OSHA is forcing them to require the vaccinations. This could constitute the tort of fraud, which might open the door for punitive damages. Employers might be subject to personal injury suits from employees who suffer vaccine injuries.
Do comply with the ADA! Political pressure is not an excuse for violating the Americans with Disabilities Act.
The ADA is often enforced by aggressive plaintiffs’ lawyers who file individual and class action lawsuits.
Lawsuits are expensive to defend and a huge drain on management time and attention.
Make sure you scrupulously follow the ADA.
Thank you!
Michael Oswald
Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.
© 2021 Michael S. Oswald
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