David Law
by David S. Law, Holland & Hart, LLP
Question: Our COVID-19 policy calls for vaccination or testing and masking “at all times.” We made a verbal offer to a candidate for a position requiring travel to trade shows, but when she learned about our vaccine-or-test mandate, she objected to sharing her vaccination status. How can we cleanly rescind the offer (which wasn’t in writing) and avoid any issues?
Answer: This is a great question. Before rescinding the offer, you should ask the candidate why she opposes the vaccine-or-test requirement. If her reason for objecting is political or ideological, you can likely rescind the offer with little risk of legal exposure. If, on the other hand, she cites a religious or medical reason, you may be required to work with her to find a reasonable accommodation.
Federal and state antidiscrimination laws prohibit you from refusing to hire a candidate who objects to a vaccine-or-test requirement because of a sincerely held religious belief or disability without first exploring whether a reasonable accommodation can be reached. An accommodation is reasonable if it doesn’t impose an undue burden on the employer. With respect to vaccine-or-test requirements, common reasonable accommodations include:
- Requiring an objecting employee to wear a mask at work; or
- Allowing the individual to work from home.
When a candidate raises a religious objection, you should presume it’s sincerely held and work with her to see if you can find a reasonable accommodation. Do the same thing if she explicitly objects to a vaccine-or-test requirement because of a disability.
It’s important to remember there are no “magic words” for raising an objection. Disability-based objections can be particularly difficult to identify. A candidate need not say “I am disabled” or “I have a disability” to receive protection. If you know she has a preexisting medical condition that interferes with her ability to comply with a vaccine-or-test requirement, you have notice of a disability and are required to proceed with the interactive process to find a reasonable accommodation.
Because differentiating protected from unprotected objections can be difficult, it’s always a good idea to consult with legal counsel before making any final decisions based on an employee’s objection.
