the following responses are provided by employment law attorney, Lilian davis. lilian is a partner at polsinelli in st. louis, mo

Can an employer ask a potential hire about their vaccination status?

As a preliminary matter, if employers require employees to get vaccinated for COVID, they are obligated under federal law to accommodate:

(i) employees who have a sincerely held religious belief against vaccinations in accordance with Title VII
(ii) qualified employees under the ADA with a disability or medical condition who request an accommodation from the requirement.

In addition, the ADA prohibits employers from asking disability-related questions pre-offer (i.e., do you have a disability? Is there a medical reason why you cannot get the vaccine?Do you need an accommodation for any health issues?).

So, while employers can ask employees about their vaccination status during the application/hiring process, to avoid potential claims of discrimination under the ADA or Title VII, we recommend waiting until after an offer is made to make the inquiry/request an attestation regarding same. That way, the employer can also inquire as to whether the employee needs an accommodation. If the inquiry is made during the interview process, even if you are not using the question to screen employees out/will provide eligible employees with an accommodation, an interviewee who cannot get vaccinated due to a medical condition/sincerely held religious belief/applicable state exception could claim that the interview question in and of itself was used to screen them out/they were not provided a reasonable accommodation.

Moreover, from a practical standpoint, since you cannot ask any follow up questions regarding why an employee has not been vaccinated before making the job offer, asking the question during an interview would not necessarily help provide you information as to whether you can hire the individual.

Can an employer mandate new hires to have the COVID vaccine? If so, can an employer refuse a job offer based solely on vaccination status?

Employers can mandate new hires to have the COVID vaccine. They cannot refuse to offer a position to an employee because they don’t have a COVID vaccine. As set forth above, even with a COVID mandate, they need to reasonably accommodate employees who cannot get vaccinated due to a medical reason or sincerely held religious belief. Again, while they could ask an applicant whether they have been vaccinated pre-offer, any questions related to why an individual has not been vaccinated (to determine whether an accommodation is necessary) cannot be asked until AFTER an offer is extended.

We recommend including the requirement that employees will be required to be fully vaccinated or qualify for an exemption on job postings, which would make the vaccination requirement clear to applicants. Then, the job offer could be conditioned upon providing proof of vaccination/qualification for exemption as well as any other requirements (background check, physical, etc.).

Can an employer mandate the vaccine as a condition of employment? Can employers terminate individuals who do not have the vaccine? If not – is there anything they can do to encourage getting vaccinated?

Employers cannot simply terminate individuals who do not have the vaccine. If employers require employees to get vaccinated for COVID, they are obligated under federal law to reasonably accommodate:

(i) employees who have a sincerely held religious belief against vaccinations in accordance with Title VII,
(ii) qualified employees under the ADA with a disability or medical condition who request an accommodation from the requirement.

They would not need to accommodate someone who has a general fear of vaccinations or is skeptical about this particular vaccination. Note, however, that some state mandates may require employers to provide an accommodation for “conscientious objections” to the vaccine; there is no such requirement in Florida or Mississippi at this time, but things are rapidly changing, especially in response to President Biden’s recent announcement. So if you issue a mandatory vaccination policy, we will want to confirm no state-specific considerations are at play. The reasonable accommodation process under Title VII and the ADA is tricky so you should consult with legal counsel if you receive a request for accommodation.

Specific to Florida and Mississippi; there is currently no legislation that would prohibit employers from enacting a mandatory vaccine policy for their employees. The Florida Governor issued an executive order prohibiting business entities from requiring that patrons or customers provide documentation certifying COVID-19 vaccination or post-infection recovery to enter or obtain service from a business in Florida, but this does not apply to employer-employee relationships.

Can an employer charge higher medical premiums to employees who have not been vaccinated and lower premiums to those that have?

Possibly. Generally, an employer cannot treat employees differently (including charging different premium rates) based on the employee’s health status, including whether or not an employee is vaccinated. However, employers may design wellness incentives to charge different premiums.

The DOL recently indicated that they would be issuing guidance regarding premium surcharges for unvaccinated employees, but nothing has been issued yet. Charging different premiums can have various legal implications (ERISA, HIPAA, the Affordable Care Act, Title VII, ADA, etc.) so if this is an option you are considering, we would (at a minimum) wait a few weeks to see if guidance is issued and have you work with us before going that route.

Resource: Lilian Davis | Polsinelli Law