On August 23, 2021, the FDA announced the Pfizer COVID-19 vaccine is now fully approved.  With this news, more and more employers are adopting, or considering whether to adopt, vaccine mandates for their workforces.  One issue that a vaccine mandate raises is whether employers can lawfully ask job applicants about their COVID-19 vaccination status after they have adopted a vaccine requirement.  The short answer is that yes, you can, but it is advisable to wait to ask about an applicant’s vaccination status until after extending a conditional job offer.

Under the Americans with Disabilities Act (“ADA”), employers may not ask job applicants questions that are likely to reveal the existence of a disability before making a job offer.  The administrative agency charged with enforcement of the ADA, the federal Equal Employment Opportunity Commission (“EEOC”), issued guidance on a number of COVID-related legal issues earlier this year, and among the questions addressed was whether its legal to ask employees whether they are vaccinated.  The EEOC clarified that inquiring about vaccination status alone is not asking a question that is likely to reveal the existence of a disability, because there are many reasons why an employee may not be vaccinated besides having a disability.

While asking the vaccination question alone is not a disability-related inquiry, any follow-up questions could reveal the applicant has not been vaccinated due to a disability or religious objection.  Or, the applicant may simply volunteer this information as an explanation for why they are not 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 or for religious discrimination under Title VII of the Civil Rights Act.

To eliminate these risks, employers could instead avoid asking about vaccination status until after extending a job offer that is conditional upon showing proof of vaccination, absent a need for reasonable accommodation for a disability or sincerely-held religious beliefs against vaccination.

So, what about Texas’s ban on “vaccine passports”?  Does this impact the analysis?  The short answer is, no, not for private employers.  On June 7, 2021, Texas Governor Greg Abbott signed into law new legislation that prohibits government entities from requiring proof of vaccination from individuals and strongly discourages private business from requiring that customers be vaccinated.  The Texas law simply does not apply to a private employer’s ability to require or encourage COVID-19 vaccinations for employees.

For further information on this topic, please reach out to blog author, April Walter, at april.walter@keanmiller.com