Is It Appropriate to Require That New Hires Be Vaccinated?
Jul 30, 2021 | Written by: | Share
In light of the uptick in positive COVID-19 cases and the presence of the Delta variant, employers are again faced with decisions concerning the vaccination status of employees and new hires.
The Americans with Disabilities Act (ADA) prohibits employers from asking applicants questions that are likely to reveal the existence of a disability before making a job offer. This practice will also create potential liability under the New Jersey Law Against Discrimination (NJLAD). This does not mean, however, that employers will be handcuffed in the event a fully vaccinated workforce is desired. As set forth in our prior blog by Sharon Flynn, Esq., asking existing employees whether they have received the COVID-19 vaccine is not a disability-related inquiry under the ADA. EEOC guidance also provides that employers may lawfully mandate vaccinations.
Employers may also require that new hires be vaccinated by the first day of work, provided they accommodate those who can't receive the vaccine for disability or religious reasons. Employers should let potential hired know at the earliest possible stage in the hiring process, preferably in the job advertisement or posting, that 1) vaccination is required and 2) that accommodations for disability and religious reasons will be considered.
Employers should not focus on proof of vaccination at the interview stage. Pre-hire discussions should center on the candidate's qualifications and expertise for the job. If an offer is considered as a result of the interview, employers can then inquire about vaccination status.
Additionally, if the employer screens everyone who comes into the workplace for COVID-19, then screening a potential hire at the job interview is appropriate. However, asking screening questions or COVID-19 status for candidates who are interviewing remotely is not appropriate, nor is asking applicants whether they were previously infected with COVID-19.
The employment atmosphere is continuously changing, so it is crucial that employers stay on top of the latest guidance, be mindful of the need to modify workplace policies, and work closely with employment counsel to ensure their existing policies are appropriate.
Leslie A. Parikh, Esq., is a partner with Gebhardt & Kiefer, PC. She practices primarily in the areas of employment law, civil rights litigation, municipal law, insurance defense, and the representation of public entities in both State and Federal Court. Contact Ms. Parikh at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.