Outlook Is Negative For Biden’s Vax Mandate

Things move quickly in employment law these days.

Hours after my last article was posted, the 5th Circuit Court of Appeals issued an opinion slamming the requirement that employers with 100 or more employees “vax or test” their workers. OSHA then announced it has “suspended activities related to the implementation and enforcement of the [rule] pending future developments in the litigation.”

With the 6th Circuit Court of Appeals “winning the lottery” and being designated by the Judicial Panel on Multidistrict Litigation as the circuit to decide the rule’s fate, such “future developments” do not appear to bode favorably for OSHA and President Joe Biden.

Assuming the emergency rule gets struck down, private companies that want a mandatory vaccination policy will continue with that approach. Those that feel a mandatory policy is a bit too heavy-handed will likely continue to “encourage” vaccination, and require some form of PPE/face covering for in-office attendees.

And companies run by those who don’t care will continue to do their thing when it comes to current staff, but what about future employees’ vaccination status?

The question of applicants’ rights, especially with respect to anti-disability laws like the Americans with Disabilities Act is a particularly interesting one, especially in the context of COVID-19.

You have probably read elsewhere that the EEOC has gone on the record in saying that employers are free to ask employees for their vaccination status, including requests for proof.

However, applicants have a different set of rules that apply to them.

There are essentially three stages when it comes to folks applying for a job, and the rules change depending on the stage: (1) applicant; (2) applicant who received a conditional offer of employment; and (3) current employee.

During the applicant stage, employers are prohibited from making “disability-related inquiries.”

While this wouldn’t preclude a question about something obvious, be very careful about going down this path – especially with respect to any follow-up questions.

For example, “are you vaccinated?” probably flies if the answer is just yes.

If you ask that question and get a recitation of the applicant’s various disability-related reasons for not getting the shot, you’re in trouble.

And because this question is so likely to elicit additional health information, it’s generally not recommended at this stage.

Once you’ve extended a conditional offer of employment, it’s essentially game on for employers, and employment questions are fair game (including medical examinations).

This would obviously include questions about whether the applicant has been vaccinated, intends to do so, requests a reasonable accommodation, etc.

When the individual reaches Stage 3 and is a current employee, the rule is a bit of a compromise between Stages 1 and 2.

For current employees, employers are able to request medical information as long as it is “job-related and consistent with business necessity.”

Depending on jurisdiction, this is probably an acceptable time to make such inquiries.

Transparency is likely going to be key. If you have a mandatory policy, ask on the application, likely inserting language that points out the fact that you provide reasonable accommodations. A lack of transparency, or an overeager interview process, could be a recipe for litigation.

Brian G. Klein is the co-founder of Weinstein + Klein P.C., a boutique law firm in Morristown, New Jersey, that focuses on the representation of business owners.