Employers can quiz prospective hires on vaccination — carefully

For companies looking to fill new positions, vaccination may be one of their requirements now, especially with Pfizer’s FDA approval.

In fact, according to the employment website Indeed, the share of job postings specifically requiring vaccination against COVID-19 rose 119% as of Aug. 30 from the previous month.

While it’s OK to inquire about a prospective hire’s vaccination status, employers still must tread carefully to avoid questions that intrude on sensitive, protected information, experts say.

"Anti-discrimination laws apply to both applicants and current employees," says Samantha Monsees, an associate in the Kansas City office of Fisher Phillips. "Employers want to avoid capturing disability or religious-related information during the hiring process."

The U.S. Equal Employment Opportunity Commission has said that asking whether an employee/applicant is vaccinated is allowed, she says.

Where problems can arise is if it goes beyond a simple yes or no answer, says Monsees, who discusses this in-depth at https://tinyurl.com/y24zj2y5.

Employers can run afoul if they ask follow-up questions related to why an employee isn’t vaccinated or if, say, the employee in conversation decides to reveal disability-related information.

Some question off limits

The Americans with Disabilities Act prohibits employers from asking applicants, prior to making a conditional offer of employment, questions that could reveal the applicant has a disability, Monsees says. Employers, pre-offer, may ask if the applicant will need an accommodation to perform a specific job duty, and if the answer’s yes, the employer may then ask what the accommodation would be, she says.

To avoid problems during the hiring process, she recommends employers follow safeguards such as making the company’s vaccination policy clear to applicants in job postings and during the interview process; listing vaccination status as a yes/no answer on applications; and training staff on asking the question appropriately.

Joseph Gunnar & Co, a Uniondale-based financial services firm, lists in its job postings that vaccinations are mandatory, says CEO Joseph Alagna. They also plan to put it as a yes-or-no question on applications.

The company mandated employees be fully vaccinated by Oct. 31 unless they have a legitimate exemption, he says. Over 90% have already gotten at least one shot, says Alagna, who noted that when he initially announced the mandate policy about a dozen of his just under 100 employees were opposed to vaccination. But that changed in mid-August when about half of those unvaccinated employees got COVID.

And so far "every person that’s answered our job ad has told us they’ve been vaccinated," he said, adding it hasn’t been an issue in drawing applicants.

Alagna also owns Arooga’s, a Patchogue restaurant, and mandated by Oct. 31 those employees get vaccinated, of whom more than 60% are.

Insisting on vaccinations

He said there may be some employees opting to leave, and while he sympathizes with their concerns, "I need to make decisions at the end of the day that benefit the greater whole."

RXR Realty, one of Long Island’s largest landlords, is also mandating vaccination. Senior Vice President David Garten in an emailed response to Newsday, says, "all applicants are made aware before formally entering the recruitment process that RXR requires it’s employees to be vaccinated."

He noted that given RXR’s "publicly stated mandated vaccine policy," they haven’t encountered pushback issues from applicants.

Pushback or not, ultimately an employer can decline hiring someone if they refuse to get vaccinated and don’t qualify for a medical or religious exemption, says Asish Anne Nelluvely, counsel at Meltzer, Lippe, Goldstein & Breitstone, LLP in Mineola.

Still, "if there’s a vaccine mandate in place, the employer should provide an opportunity for the applicant to seek a reasonable accommodation once they are offered the job," she says. The prospective employee is under no obligation to reveal any need for a accommodation prior to receiving an offer, Nelluvely says. That is protected medical information.

Accommodation discussions

If the applicant advises the employer they need a reasonable accommodation based on a particular exemption such as a disability or closely-held religious belief, then the employer should engage in an "interactive process" with that person, Nelluvely says. This would be a discussion that involves gathering information and exploring accommodation options.

The question of how to navigate asking people about vaccination is coming up more in conversations with employer clients especially since President Joe Biden announced vaccine mandates for large employers, says Jose Santiago, general counsel at Farmingdale-based Alcott HR, which assists firms with outsourced HR functions.

"Employers are definitely considering adding this question to their initial job application process," he says, noting some are already putting it on the application itself.

Others are doing it in conversation, but only as a yes-or-no question, he says.

"Employers should remember that anti-discrimination statutes protect individuals throughout the entire employee life cycle including the application process," Santiago says.