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Vaccine passports seem to be the hot button issue of the day. Most of the media coverage and remarks from politicians have focused on businesses requiring customers, guests or students having proof of vaccination before returning to school or entering the business establishment. But what about employers? Can an employer require a new employee to present proof of vaccination as a condition of employment or provide a hiring preference to applicants who have been vaccinated?
The Equal Employment Opportunity Commission (EEOC) has made it clear that employers, with some exceptions, can mandate that employees be vaccinated for COVID-19. Employers need to make an accommodation for employees with disabilities or an employee who objects on the grounds of a sincerely held religious belief or practice. The EEOC has also stated that requiring an employee to show proof of COVID-19 vaccination is not a disability-related inquiry. However, the EEOC has not squarely addressed the issue of vaccines or proof of vaccination during the hiring process.
Logically, it would seem that if an employer can make vaccinations for employees mandatory it can also require applicants to provide proof of vaccination as a condition of employment. I largely agree, but there are some factors an employer should consider before requiring applicants to provide proof of vaccination or making vaccination a hiring preference:
- Governor DeSantis’ Executive Order 21-18 prohibiting COVID-19 vaccine passports. The executive order prohibits businesses from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination. As currently written, the executive order does not apply to employment, but that could change. Employers will need to monitor any changes to the executive order or legislation addressing vaccine passports. The Florida Legislature is considering a statute regarding vaccine passports.
- Disparate impact. Federal and state anti-discrimination laws can make it unlawful to apply a neutral rule or policy that has a disproportionate impact on members of protected classes, such as minorities and women. Such neutral rules will be lawful if they are job-related and consistent with business necessity. Employers implementing a hiring preference for those who have been vaccinated should monitor what impact, if any, the requirement has on protected groups.
- Privacy and Confidentiality. If an employer retains proof of the new hire’s vaccination record, the employer should treat the record as confidential medical information and follow the requirements of the Americans with Disabilities Act. Employers should also advise applicants that the employer simply needs proof of the vaccination and not information about any underlying health conditions.
Employers may wish to take a wait and see approach on vaccine passports or vaccine hiring preferences. The government may issue guidance in the near future. Like everything else with COVID-19, there is still a lot of uncertainty.