Can you legally ask candidates and make hiring decisions based on a person’s vaccination status?
The short answer is yes. Does that mean that you will hear all sorts of reasons from candidates, employees, hiring managers, and others that you can’t? You sure will. Here are a few resources that can help you. For starters – it’s important to understand the impact of the EEOC, the ADA, and HIPAA on what you can and cannot do. The EEOC has directives on how you apply rules and regulations to your various current and potential employees. It’s best to ensure you don’t apply any COVID-related screening in such a way as to discriminate against any particular protected group. The safest way to do this is to require 100% of employees or 100% of on-site employees to prove vaccination.
The ADA restricts questions that pertain to a person’s medical history and more importantly lays out how the company must store this information. The biggest thing that the ADA directs is that disability-related medical information must be stored separately from the employee’s information. For many employers, all medical information is stored separately and kept confidential, with limited access to this information, but as it pertains to COVID, the ADA does not specifically cover potential or current employee’s disclosure, capture, or storage of this information. HIPAA restricts the disclosure of medical information if you are a healthcare provider or a subcontractor of a healthcare provider, and even that it is limited to the patients and not employees’ data. It does not restrict an employer from asking, requiring proof, or making a hiring decision based on vaccination status. In short, there is no restriction on asking or requiring vaccination of COVID-19 or any other vaccination as a condition of employment as long as the requirement is applied fairly.
That’s it. Nothing else.
The EEOC has put out this helpful article that addresses concerns about how asking or requiring COVID-19 vaccination pertains to the EEOC commission as well as provisions from ADA which prohibits employers from asking certain medical questions. Some of the bigger takeaways are:
Some things you are allowed to do because there is an active pandemic. That means if at some point, when the CDC declares that the pandemic is over, you will want to reevaluate your policies to ensure compliance.
Make sure you understand the regulations as they pertain to EEOC (how you apply the rules), ADA (what medical information you may collect and who may have access to it), and HIPAA (what information you may disclose).
You may require a COVID-19 vaccination to be employed or be a subcontractor of an employer. While you may not require it for all positions, you must apply it equally across any job type. For example, you may require it for any employee on-site, while for any job that is performed remotely you may choose to not require it.
How, and when, should you ask candidates if they are vaccinated?
If as an employer you require candidates to be fully vaccinated to start employment, you should disclose this information as early as possible to the candidate. There are a few ways to do this:
In your job description and advertisement, you may want to state something such as:
We are a 100% vaccinated workforce against the COVID-19 virus.
All prospective employees must be fully vaccinated against the COVID-19 virus.
In your employment application/ questionnaire disclose this requirement. You may ask things such as:
Are you fully vaccinated or will you be fully vaccinated against the COVID-19 virus prior to beginning employment?
As a condition of employment, you are required to prove that you are fully vaccinated against the COVID-19 virus, will you be able to provide such proof
The most important part of these disclosures is to not be lazy about it. Saying things such as ‘must be vaccinated’ without saying ‘against COVID-19’ or saying must be vaccinated or submit to weekly testing without being hyper-specific means that you have opened yourself up to problematic candidates who may argue the details. In these circumstances, more specificity is essential.
How do you validate vaccination status?
Like I-9, you should validate as part of your onboarding process. Candidates shouldn’t have to be vaccinated to apply for your job, only as a condition of beginning employment. Do not make your recruiters in charge of verification, only of initial screening and ensuring candidates are aware of this requirement.
How should you store vaccination status information?
How you choose to store vaccination information is more about policy than anything else. Most likely you will need to manage storing this information at two points in the process: initial screening (ATS) and as an employee (HRIS). If, as a general rule, you store medical information, including ADA related medical information separately then you may want to use that policy. If you don’t have a policy on ADA, then here are some options.
In the ATS screening process:
Ask candidates as part of the application process and store the response (yes/no) in your ATS visible to recruiters. If this is a condition of employment, you may also want to transfer this information to your HRIS or some other system where you store employee records.
Ask candidates as part of the application process, and store the response in the ATS where it is not visible. Rather, tie the question to pass/fail in moving the candidate forward. Much like a background check or a drug test where recruiters only get pass/fail and not the details, this too can be handled in such a manner.
As an Employee record in the HRIS:
As a general rule, employee medical information should be kept as a need to know access, limited as much as possible. This data should not transfer from the ATS, but rather be captured and stored as part of the onboarding process.
How do you keep candidate volume up while adding more friction to your application process?
One of the biggest challenges for any company hiring right now is the balance of getting the critical information you need from candidates while not losing great candidates in the process. The reality is that adding the vaccination question to your application is going to impact candidate flow. According to Our World Data, as of September 18, 2021, 55.3% of Americans (note this isn’t eligible Americans, but rather all Americans) are fully vaccinated. If we do some rough math (removing the under 12 crowd), about 65.2% of eligible Americans are fully vaccinated. If you are thinking you are about to lose 35% of your potential candidates, you might be right.
And in some states, that percent is going to be even higher than that.
Individuals may make different choices given the new federal and individual company mandates, and vaccinations take time, with many of them requiring a full 6 week cycle to be “fully vaccinated” (2 weeks post the second shot), but you most likely don’t have that time, after all, the retail hiring rush is upon us, and that impacts all hiring organizations as competition for candidates gets even worse.
The easiest way to capture both this additional question and keep volume high is to use the job sites Quick Apply feature where as an employer you gain access to far more candidates (the job sites give preference to Quick Applies in their algorithms because they control the candidate experience), and thus upping the volume of candidates you will get for your jobs. But, to get the vaccination question, and frankly other key questions you may need as part of your screening process, you may want instead to integrate your ATS questions (or questionnaires) into your job site Quick Apply experience. If you don’t have an ATS (or the thought of integrating it makes you queasy), there are alternatives. JobSync has integrated hundreds of top hiring organizations to job site Quick Applies with custom questions, driving candidate volume up by 88%.
The second option is to expand your candidate pools – the largest untapped pool being Facebook – which you also tap into their Quick Apply feature with a bridge to your ATS.
The most important consideration is to set expectations internally about the implications of adding this requirement and having a solid plan to overcome the inevitable numbers challenge you will face with added friction to your candidate application and hiring process.