If you ask about COVID vaccine status when hiring, dont violate ADA

Q In interviews with prospective employees, can we ask about their COVID-19 vaccination status?

Generally speaking, employers can ask prospective employees about their COVID-19 vaccination status. This doesnt mean, however, you dont have to limit your inquiry, especially under the Americans with Disabilities Act (ADA).

In late 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance making it clear simply asking a prospective employee about his or her vaccination status doesnt violate the ADA. It is an ADA violation, however, to ask prospective employees questions that are likely to reveal the existence of a disability before making a job offer. Therefore, you must tread carefully when inquiring into vaccination status.

For example, any follow-up questions could reveal the applicant hasnt been vaccinated because of a disability. She may also simply volunteer such information as an explanation for why she isnt vaccinated. Interviewers need to avoid these types of inquiries or voluntary disclosures because they raise a risk of an unselected applicant suing for disability discrimination under the ADA.

The same risks dont necessarily apply to employees offered a position if you have a legitimate business reason for the inquiry. Therefore, to eliminate the risks, you could instead avoid asking about vaccination status until after extending a job offer that is conditional upon proof of vaccination, absent a need for reasonable accommodation for a disability or sincerely held religious beliefs against vaccination.