Thanks for interviewing with us—are you vaccinated?

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

A   Generally speaking, you can ask prospective employees about their vaccination status when interviewing them, but there are some attendant risks to doing so.

Under the Americans with Disabilities Act (ADA), you may not ask applicants questions that are likely to reveal the existence of a disability before making a job offer. The Equal Employment Opportunity Commission (EEOC) has, however, clarified in recent guidance that simply asking about COVID-19 vaccination status alone is permissible because it isn’t likely to elicit information concerning a disability since there are any number of reasons why a prospective employee may not be vaccinated.

Any follow-up questions regarding vaccination status, however, may reveal the applicant hasn’t received the vaccine because of a disability or, perhaps, for religious objections, and any such questions must be job-related and consistent with business necessity. Further, “screening out” job applicants based on vaccination status can be risky because they could allege they were discriminated against based on a disability under the ADA or sincerely-held religious beliefs under Title VII of the Civil Rights Act.

Additionally, requiring written proof of vaccination status is permissible, but such records are treated as confidential medical records under the ADA.