June 24, 2021

EEOC Says Employers Can Demand Vaccines for New Recruits. Here’s What to Know

June 20 marked the first day of summer, and in preparation for the renewal of festivities after over a year of quarantine and closures, states began re-opening around June 15. Many venues, like amusement parks and restaurants, have already reported surging crowds. People are eager to resume lives put on hold during the pandemic. However, and this is important, COVID-19 is far from contained. In the United States, vaccination rates failed to reach President Biden’s goal of 70% by July 4. We know that many workers remain concerned about returning to office life. Employers, who long to have people back at their desks, also want to ensure that the spread of infection stays curbed. Some may begin mandating that candidates provide proof of vaccination. And the government says they can. Here’s what you need to know.

“Life’s Back to Normal.” Too Soon?

Here in the United States, the images on the news would make it seem as though the pandemic is going the way of the dinosaur. Unfortunately, it’s not really the case. The majority of the world’s countries must likely wait until 2023 to 2024 for the same access to vaccines that the 32 wealthiest nations enjoy now, according to estimates from the Duke Global Health Innovation Center in Durham, North Carolina.

In a research article for Nature, Asher Mullard pointed out that vaccine manufacturers had produced only enough doses for about one third of the global population to receive by the end of 2021. 

“Most of this capacity is already spoken for,” Mullard wrote. “The 27 member states of the European Union together with five other rich countries have pre-ordered about half of it (including options, written into their contracts, to order extra doses, and negotiations that have been disclosed but not yet finalized). These countries account for only around 13% of the global population.”

Just a week ago, Forbes’ Joe Walsh reported “brutal upticks in infections” outside North America and Europe. 

“Argentina’s hospital system has been strained by weeks of daily Covid-19 case counts above 30,000, more than triple the level in mid-March, and infections have risen in Colombia and Chile and remained high in Brazil and Uruguay,” he explained. 

“Malaysia’s daily infection numbers have jumped from around 1,000 to 8,000 in the last two months, forcing the country into a tight nationwide lockdown this week, and Thailand, Vietnam and Cambodia are facing sudden spikes after successfully preventing large-scale outbreaks last year, though their case counts are still fairly low,” he continued. 

India, too, is currently battling a harsh second-wave outbreak that is devastating the nation. 

As travel restrictions lift, popular tourist destinations such as South America and Southeast Asia can still pose significant risks. The argument against it appears to be that “most people are vaccinated now.” In reality, only 22% of people around the world can make that claim.

The United States has also fallen short of its push to attain a 70% immunization status, based on Mayo Clinic data. The rate of vaccinations ranges from 27% in places such as Mississippi to about 47% elsewhere. Vermont leads with a 58.4% vaccination rate. But most of the nation’s states, on average, haven’t made it out of the 30s. 

On June 20, the Washington Post warned of another fall outbreak if the situation stays the same: “The transmission of the more contagious delta variant in the United States could spur a fall surge in coronavirus infections if only 75 percent of the country’s eligible population is vaccinated, former Food and Drug Administration chief Scott Gottlieb said Sunday.”

That also doesn’t mean the news is dire. Right now, as USA Today cited, about 65% of all American adults have received at least one dose of a COVID-19 vaccine. Around 56% are considered fully vaccinated. Yet, the key word is “adults.” Age is an important factor here. And the group of people with the lowest vaccination rates are those between the ages of 18 and 26—individuals who represent close to 46% of the workforce.

Naturally, concerns about widespread return to work policies persist. Some coworkers aren’t comfortable heading back into a physical group environment knowing that many others may not be vaccinated. Business leaders, despite wanting their teams to reassemble in person, are also being cautious. And if companies have a valid reason for mandating that candidates get the vaccine, they can.

Requiring Candidates to Get Vaccinated

At the end of May, the Equal Employment Opportunity Commission (EEOC) issued formal guidance on an employer’s ability to require vaccines for its workers. 

“The expanded technical assistance provides new information about how the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) apply when an employer offers incentives for employees to provide documentation or other confirmation of vaccination when an employee gets a vaccine in the community or from the employer or its agent,” the EEOC update said. 

Put a simpler way, employers can mandate the vaccine for a legitimate business purpose as long as reasonable accommodations are made for people who can’t get vaccinated due to religious reasons or disabilities. Following is a summary of the EEOC guidelines.

  • Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations. 
  • Because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
  • Employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.
  • Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The technical assistance highlights federal government resources available to those seeking more information about how to get vaccinated.

In terms of legitimate business reasons, ERE noted a few: “Examples of business reasons include interactions with the public (retail, restaurants, bars, some professional services, etc.), small children (daycares, schools, camps, etc.), facilities with many people who are not able to socially distance (some manufacturing and food processing plants), and, of course, healthcare facilities.”

Best Practices for Recruiters and Staffing Agencies

Recruiting qualified candidates for open positions is already tough enough in this labor market, where talent have a wealth of choice and control. Demanding that they provide proof of vaccination to get a job could only make a difficult situation even more challenging. However, your client companies may have this policy as a hard requirement for eligibility. Here are some tips for easing the strain.

  • Before diving right into the “are you vaccinated?” conversation, explain the client’s policy and the reasoning behind the decision, helping candidates understand why the company places such importance on it.
  • After, you can ask the candidate about their vaccination status. And legally, you can request to look at their vaccination card. If they have not yet received the vaccine, ask them if they're willing to get the shots before starting the job. 
  • If a candidate refuses, you need to ask if he or she requires reasonable accommodation. Don’t ask them to provide a reason or detail the nature of the accommodation (e.g., disability, religion, etc.). 
  • If the client company, or your agency, offers incentives for potential new hires to get vaccinated, be sure to explain those benefits upfront. This may encourage otherwise reluctant candidates (those not in need of reasonable accommodations) to take action. That said, as dictated by the EEOC, illustrating these incentives must never seem pushy, coercive, or in any way designed to manipulate or pressure talent into receiving a vaccine.

When all is said and done, the only way to prevent the further spread of this pandemic is an immunized society. Barring reasonable accommodation, candidates should be responsible citizens and colleagues. And if they still refuse, outside of those special circumstances, you must adhere to the company policy and prepare to continue searching for other talent. 

Image by hakan german from Pixabay

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