Job Seekers: Know Your Rights When it Comes to Your COVID Vaccination Status

Now that the pandemic has largely subsided and employment in most industries in the United States has been steadily on the rise, questions are surfacing around COVID-19 vaccination status, including:

• Can employers ask job applicants if they have been vaccinated? 
• If so, do legal protections exist for the applicant, whether or not they are vaccinated?
• Can unvaccinated job applicants be denied employment?

We asked San Francisco, California-based employment attorney Bruce Weisenberg for some insight into those questions and more. Here's the scoop.

Resume Now:  What are employers' legal limits to asking job applicants about their COVID-19 vaccination status?

Bruce Weisenberg: Under federal law, and here in California, there are no laws prohibiting an employer from asking job applicants whether or not they have been vaccinated. It is the same type of thing as a pre-employment drug test: If you refuse to take a drug test, you probably won't get the job.  If you refuse to disclose your vaccination status, you probably won't get the job.

While everything is evolving right now, it seems clear that most employers will ask applicants about vaccination status. In California, OSHA just made that mandatory, unless the job is 100% remote. Some employers will ask for a vaccination record and others may allow applicants and employees to self-report.

In some cases, if it wouldn't be an undue burden on them, employers are required to accommodate applicants who are not vaccinated and who do not plan to become vaccinated, by allowing them to work. The most likely accommodation will be the requirement to wear a mask and/or socially distance yourself from others at work if hired,  while vaccinated employees will be allowed to work without a mask and without social distancing.

In California, if it is job related and a business necessity, and is justified by the circumstances of the job, a prospective employer can require you to take a viral test for Covid-19 to protect the health and safety of its employees and others.  However, they cannot require you to take an antibodies test, according to the Department of Fair Employment and Housing (DFEH), because those tests are unreliable and thus, unrelated to business necessity.  These rules fall in line with federal Equal Employment Opportunity Commission (EEOC) laws, which prohibit discrimination on the basis of race, gender and disability.

RN: When is a Covid test a job-related and a business necessity?

BW: That is what lawyers will be fighting about when employees start getting fired and applicants don't get hired for refusing to take an employer-mandated Covid test. If you work in a nursing home and are fired for refusing to take a Covid test, your lawyer is probably going to lose that one. If you are applying for a security guard position, working the night shift alone, it's hard to see how a Covid test could be a business necessity. Every situation is different and we don't yet know exactly how the courts are going to apply these new rules.

The best thing to do as a job applicant is to get vaccinated if you don't have a medical or religious reason not to. If you can't get the vaccine for medical reasons and you have a doctor's note confirming that, or if your religious organization prohibits vaccinations, then you have legally protected rights to be considered for the job on an equal basis with vaccinated applicants.

RN: What specific questions can employers ask regarding COVID-19 vaccination status?

BW: Employers can and will ask applicants if they have been vaccinated. If you are not vaccinated, the employer can ask whether there is any medical or religious reason you haven't been vaccinated. If you are a job applicant and have not been vaccinated for medical or religious reasons, you should say so during the application process, whether or not you are asked about it.

If you have a disability, you might want to ask for accommodations when you apply for the job. While every job has different duties and interactions with coworkers and the public, if the prospective employer engages you in a conversation about possible accommodations, such as you wearing a mask and social distancing, that you might have to adhere to in order to work for them, you should work with the prospective employer to find a good solution if you want the job.

Laws are in place to protect the unvaccinated worker's right to employment, but only if you have a religious objection or a medical reason to not get vaccinated. If those things don't apply to you, and you aren't vaccinated, a prospective employer may deny you employment or delay employment until you get vaccinated. Just yesterday, San Francisco, where I live, announced that it is requiring vaccinations for all 35,000 employees working for the City and County. Unvaccinated employees will be terminated and unvaccinated applicants will not get the job. Of course, they will still have to make exceptions for people who are unvaccinated for religious or medical reasons.

Just last week, Cal OSHA, which issues and enforces health and safety rules in the California workplace, issued new rules that clear up a few questions here. These rules require prospective employers to ask applicants if they have been vaccinated and to keep records of their vaccination status. If everyone is vaccinated, nobody has to wear a mask or observe social distance.  If an employee is unvaccinated, they need to wear a mask and socially distance to the extent possible.  The rules also allow employers to require applicants to show proof of vaccination before starting work. Most will probably do that, but employers will also be allowed to use the honor system and some will choose to do it that way.

These rules are going to be different from state to state, and counties can implement their own rules, so the whole situation is still evolving.

RN: Are applicants in some industries required to answer questions about vaccination status more than others?

BW: Right now we don't have a good answer for that. Regulated professions like healthcare workers should probably expect stricter rules that will allow employers to ask more questions about vaccination status.  I assume that most employers across industries will ask applicants their vaccination status for the next year or so.

For unvaccinated applicants, this is going to be a period of uncertainty. You may apply to one company that won't even consider hiring an unvaccinated person, and another in the same industry that has a system in place to put unvaccinated people to work. We will certainly see variations among industries.

RN: What about union applicants? Are there special rules for them?

BW: Yes. I haven't heard anything specific yet, but the collective bargaining agreement between the union and the employer should govern these kinds of issues. I'd guess there are discussions going on between the unions and employers right now, but I haven't seen that issue in my practice.

A lot of union-related legal issues are preempted by the written agreement bargained for by the union. Unless it is an unwaivable civil right, like disability or race discrimination, we employment lawyers leave that to the labor lawyers. I would guess that, ultimately, vaccination requirements for union applicants will be similar for unrepresented applicants.

Until then, if a prospective employer or union asks whether you are vaccinated, you must answer or risk insubordination. If the answer is no, they can ask if you have a religious objection to vaccination or a documented disability that precludes you from vaccination. You only have to answer to the extent necessary to alert the employer that you have a legally protected right not to be vaccinated.

RN: Does the Americans with Disability Act provide protection for job applicants when it comes to COVID-19 vaccination status?

BW: Absolutely. Under the ADA and, at least here in California, state law, job applicants are entitled to the same protections against discrimination as employees. Those laws protect applicants who can get a doctor's note stating they have a disability or medical condition that precludes them from getting vaccinated. Once you engage them in that discussion, employers have an affirmative duty — that means they have to do it — to engage in a good-faith, interactive process to figure out some way that you can do the job with some kind of accommodation. They could ask you to wear a mask and socially distance yourself from other employees. They can encourage employees to get vaccinated and you may or may not be eligible. There is quite a bit of uncertainty with respect to prospective employees' rights and the outcomes will vary state by state.

If you are a job applicant and have a legitimate medical reason why you cannot be vaccinated, tell the prospective employer if they ask. If they deny you work on that basis, you may have some legal rights.

Once a prospective employer knows an applicant has a disability or medical condition that  precludes them from being vaccinated, they have to work with the applicant in good faith to determine whether there is any way they can accommodate an unvaccinated person in the workplace.

In many, if not most cases, the employer should be able to accommodate an unvaccinated (for reasons of disability) job applicant by mandating that they wear a mask and practice social distancing upon getting hired. Unless that creates an undue burden on the prospective employer, as it might for an in-home caregiver, they are required by law to provide that accommodation.Cases are fact specific, and both sides argue the "facts" to support their legal positions. However, if you are an applicant who is disabled or has a medical condition that doesn't allow you to be vaccinated, it is in your best interest to tell the prospective employer. If they don't keep that information confidential, that's another issue.

RN: What if an employer doesn't keep that information private once an applicant is hired?

BW: Every employee, in California at least, has a constitutional right to privacy, and especially medical privacy.  Vaccination status is a medical issue but employers won't be able to function in a lot of cases without identifying unvaccinated employees. So, if all vaccinated employees are allowed to eat lunch and sing karaoke and unvaccinated employees are not, that effectively "outs" people with very private medical conditions or religious convictions.  It also outs those who simply choose not to get vaccinated. The right to privacy protections are strongly held. There will probably be a lot of right-to-privacy litigation in the coming months and years.

That said, nobody is entitled to complete privacy. The employer can temperature check employees and anyone else, and ask them  if they are experiencing symptoms or came into contact with an infected person as a condition of coming to the worksite or public space. They can ask you why you were absent from work. If the answer is that you had a private medical condition or disability, the employer must keep that private as a medical record.

RN: What about applicants who do not wish to disclose that information for reasons of confidentiality?

BW: The reality is that it will probably be easy to see who is not vaccinated in a lot of workplaces. If the employer enforces different rules for vaccinated and unvaccinated workers, as they are generally allowed to do for health and safety reasons, it won't take coworkers long to figure out who is unvaccinated. Masking requirements will be relaxed or abandoned sooner or later. Right now it is probably sooner in a lot of states. If the prospective employer requires everyone to wear masks and socially distance until then, your vaccination status as an applicant may matter more to employers since they don't want to be liable for getting people sick. I don't know how they are going to solve that one.

If it is not the case where you work and nobody can tell you are unvaccinated, you have the right to expect that your employer will keep your medical records private.

At least in California, job applicants may be able to keep some or all of their medical history a secret if they need accommodations for a disability or medical condition. Prospective employers can require a doctor's note and ask you what work restrictions you have if you are unvaccinated for medical reasons. Most of the time, it's best to be transparent when applying for a job if you're in the process of working out an accommodation for a disability. The same goes for being unvaccinated.

RN: Can employers who are legally entitled to ask an applicant about their vaccination status require applicants to be fully vaccinated before they start work?

BW: Yes they can. If you are unvaccinated and looking for work, it might be more difficult than if you're vaccinated, but there are going to be plenty of companies that find ways to keep their workforce employed. Some will continue allowing remote work, which is maybe a silver lining in this difficult year for a lot of people. Some companies are even going fully remote!  I think there will be a lot more of those opportunities in the near future. Most will be somewhere in the middle for a while, with some companies strictly requiring vaccination as a condition of employment and others not even asking about vaccinations. This might depend on the state you live in. You just have to keep trying.

RN: Can employers who are legally entitled to ask an applicant about their vaccination status require proof of vaccination?

BW: All companies can. Some companies will. And in some regulated industries, companies will be required to keep records of their employees' proof of vaccinations.  This issue will vary state-by-state also. In California, OSHA gives employers the option of either requiring proof of vaccination or allowing employees to self-report their vaccination status. Under the anti-discrimination statutes, the Fair Employment and Housing Act (FEHA), in California employers may require proof of medical conditions and disabilities. I assume that would include vaccination status also. We hope for some clarification soon.

RN: What if a person's religion prohibits them from getting vaccinated and they apply for a job in an industry that requires vaccination — can a company refuse to hire them?

BW: Religion, like disability, is a civil right and being religious is a protected status under federal and California law. At an absolute minimum, applicants in other states are protected by the federal EEOC. At least in California, the state law is far more protective of employees' and applicants' rights than federal law.

Under those laws, when a company learns that a job applicant or employee's religious beliefs prohibit them from getting vaccinated, they need to accommodate them unless it is an undue burden on the business operation to do so. You don't need to use any special legal words to request an accommodation so that you can practice your religion and get a job. If a company you apply to asks if you are vaccinated, and the answer is no, then you should explain the reason why you can't get vaccinated.

I'm guessing we will see more Covid-related failure-to-hire cases in the near future. Each case will really turn on its particular facts, but in general the applicant will argue that they didn't get the job because they are religious, and the prospective employer will say it was for some other reason. Those cases are tough to win. An attorney has some solid evidence that the applicant's religion was a substantial motivating reason not to make the hire.

It should be fascinating to see how these issues evolve in the next year and certainly employment lawyers on both sides will be busy trying to clarify these issues going forward.

RN: What precautions should job applicants take when providing their vaccination information, i.e., how can they protect themselves against privacy and discrimiation issues?

BW: Job applicants can stick up for their rights. If they have a disability or medical condition that precludes vaccination, they should tell the hiring manager and the human resources department. If they require any other accommodation, they should tell their prospective manager. If their prospective boss doesn't allow it, then they should make a case with HR. If they are retaliated against for standing up for their civil rights, or if they are harassed on the basis of disability or religion, then they should call a lawyer.

Job applicants can also remind prospective employers of their obligations under federal and state law to keep the applicant's vaccination status private. If the company requires a proof of vaccination as a condition of employment, then they should keep it private. If a disabled or religious unvaccinated person discloses their status to a prospective employer, then, that should also be kept private.