Provided by: Jennifer Kirschenbaum, Esq.
April 22, 2021
Can I ask a potential new hire if they are vaccinated for Covid-19?
Yes. You can also have a policy requiring vaccination of staff. Be mindful of potential ADA accommodation requirements -
In March 2020 guidance, the Equal Employment Opportunity Commission (“EEOC”) explained that an employee/applicant could be entitled to an exemption from a mandatory vaccination under the Americans With Disabilities Act (“ADA” , which applies to applies to private employers with 15 or more employees) based on a disability that prevents the employee/applicant from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer. Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation. Additionally Title VII of the Civil Rights Act of 1964 (“Title VII” – for these purposes also applicable to private employers with 15 or more employees) provides that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer as defined by Title VII, a lower standard than under the ADA. Under Title VII, employers do not need to grant religious accommodation requests that result in more than a de minimis cost to the operation of the employer’s business. The New York State Human Rights Law (which applies to employers of all sizes within the state) mandates a similar “reasonable accommodation” standard.
Naturally, each step in the “reasonable accommodation” determination process should be well documented.