By Erin Mulvaney
Job seekers are touting their vaccine status on resumes or LinkedIn profiles, but what could be a boost for a candidate’s application puts employers at risk.
While vaccine mandates are largely legal and increasingly common, employment lawyers warn that hiring managers can discriminate—even unintentionally—by choosing or weeding out applicants based on Covid-19 inoculation status alone. The practice clashes with federal protections for people with disabilities or sincerely held religious beliefs.
Because Black and Latino individuals overall have lower vaccination rates, a blanket policy could also mean unintentional bias against those groups, they say.
“It’s incomplete information. Employers need to be careful they aren’t stepping into a minefield,” said Leslie Abbott, a partner at Paul Hastings LLP in Los Angeles, who represents employers. “If it’s the only indicator, you may be missing out on good applicants, and you don’t know if they have an exemption—medical or religious—that you’d have to take into account.
The Biden administration has ordered vaccine mandates for federal government employees and contractors, and the Occupational Safety and Health Administration is expected to issue a regulation to require vaccinations or regular Covid-19 testing in workplaces with more than 100 employees.
A recent survey found that a third of hiring managers would eliminate applications that didn’t include vaccination status on resumes.
But employment attorneys say it’s better to collect less information at the beginning of the application process to avoid any accusations of discrimination.
Businesses are struggling with a labor shortage while trying to navigate vaccine requirements, said Dennis Consorte, a small business consultant with Digital.com. “They need to be as flexible as possible getting people in the door.”
A September survey from ResumeBuilder.com found that 33% of hiring managers said they’d reject resumes that don’t include a Covid-19 vaccine status, and 63% said they prefer candidates that list their vaccination status. They’re also more likely to hire those who are vaccinated.
This is particularly true for the computer and information technology, food and hospitality, education, and healthcare industries, the survey of 1,250 hiring managers reported.
Meanwhile, Indeed Hiring Lab reported in September that the number of job postings requiring vaccination was up 242% at the end of August from the previous month.
David Morgan, a hiring manager in Indiana for a company that sells snorkel gear, said vaccination status on resumes is now necessary. He said he expects more candidates to offer the information, and he eliminates resumes that don’t mention it.
“Given that we live in tough situations, candidates must be aware of the fact that the vaccination status holds the same importance as your personal profile nowadays, if not more,” Morgan said.
By and large, employers can mandate vaccines legally in all states—though at least one, Montana, prohibits such requirements for shots under emergency use authorization and bans bias based on vaccine status.
Yet, the Americans with Disabilities Act and Title VII of the 1964 Civil Rights Act also require that employers make accommodations for employees and applicants with disabilities and sincerely held religious beliefs.
Hiring discrimination cases are generally uphill battles for workers to prove, but attorneys say companies can insulate themselves from such challenges by limiting the amount of information they collect from job seekers upfront.
Under the ADA, employers can’t consider an applicant’s disability status before a job offer, so employers should be consistent about what kind of information they gather. If employers ask for vaccination status, which isn’t unlawful, it’s better to stick to a simple yes or no question, said Samantha Monsees, an employment attorney for Fisher Phillips LLP in Kansas City.
“During the hiring process, the employer doesn’t want to collect any information about religious beliefs or an employee’s disability if they don’t have to,” she said.
The way employers take vaccination status into account could help them avoid accusations of discrimination, by both avoiding gathering sensitive information too soon in the hiring process, but also not automatically eliminating someone from consideration without understanding why they didn’t get the shot. Good and qualified candidates may also be overlooked by blanket policies, Monsees said.
While it’s not illegal generally for employers to consider vaccine status, leaving religious and disability information out of the initial application would be better for employers, said Condon McGlothlen, a labor and employment partner at Seyfarth Shaw LLP in Chicago.
“It’s information the employer would be better off knowing later rather than sooner,” he said.
Vaccination rates for Latino and Black individuals are lower than the rates for white individuals, and if an employer screens out those that are unvaccinated, there could be a claim under Title VII for racial discrimination, McGlothlen said.
Still, businesses could use a defense that banning unvaccinated workers keeps their workplaces safe, but collecting vaccine information opens the door to accusations of bias that an employer otherwise might not have to defend.
For workers with disabilities or religious beliefs that prevent them from getting the shot, requiring a negative Covid-19 test, instead of proof of vaccination, could be the solution, he said.
He said as more companies respond to Biden’s mandate and push for vaccination requirements, a flood of religious accommodation requests have come in. The labor shortage has also put companies in a difficult position.
“These companies want people and need people, but they also need people who are—for the most part—vaccinated,” he said. “The application issue is important given the job market, it’s a conundrum for those who want to mandate vaccines, but can’t afford to lose people who don’t want to get vaccinated.”
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By Erin Mulvaney