Episode 104: Can I Mandate Vaccines for New Employees?

For this episode of What the Hell Just Happened?! Paul Edwards discusses the ever-evolving world of COVID vaccine mandates with CEDR Compliance Officer Nora Gustafson, including if you, as an employer, can require your new hires to get vaccinated before starting employment with you. Are you legally allowed to make vaccination a requirement? Can you list it as a requirement in your job ad? Or, do you have to leave it all alone and hope your new hires are doing what you’d ideally like them to do? Listen as Paul and Nora analyze the risks associated with vaccine mandates and explain how to handle them in a safe and legally compliant way.

Transcript

Paul: Hello. My name’s Paul Edwards, and welcome to the WTHJH podcast. You’re about to listen to an episode of “What the Hell Just Happened in HR?”. 

I’m an HR nerd who loves to talk about HR with just about anyone who will listen. So, during each podcast, we’re going to delve into the solutions for dealing with a real-life HR issue. Plus, occasionally, we’re going to share some big-company, HR-strategy ideas. 

Keep in mind that for every HR problem you solve, there are state, federal, and local laws that govern what we can and cannot do. And now, let’s get started.

Nora: Hi, Paul!

Paul: Hi, Nora!

Nora: How are you?

Paul: I’m very good today, as a matter of fact. 

Nora: Great, me too! 

Paul: Good. 

Nora: So, I have a “compliance-y” question for you. 

Paul: Okay, Nora is in compliance, everybody, so it’s a trick. 

Nora: This question is really for me, not for you. I’m sorry. 

[Nora Laughs]

Paul: Okay.

Nora: We just released a blog on this, and I find it interesting. My question is: I just opened a new practice, or one of our members just opened a new practice…

Paul: Hang on a second. For context everybody (we don’t always explain these in the podcast), we’re a company that provides HR support. So, we provide compliance and problem-solving HR support. Not the other kind of HR that you’ve heard about. So, our offices or members, and they have access to our experts, and our experts help them solve their problems and answer their questions, give them options, kind of talk through things. And we kind of have multi-layers here that service this, and Nora is the layer of compliance. So, anytime we’re giving answers to questions, say, in San Francisco and the city proper, we might have to give a different answer based on that location versus, say, North Carolina or Florida, who has a different rule around something. So, we can’t just go, “Hey, you know what? Let’s try this.” We have to say, “Let’s try this, and you can do that where you are.” So, okay. Now, Nora, what did the member ask?

Nora: The member asked, “Can I mandate the COVID vaccine for my staff?”

Paul: Can I make them do it? 

Nora: Yeah.

Paul: So, that target has been moving all over the place, and you said the COVID word… oh god. 

[Nora laughs]

Nora: Sorry!

Paul: It’s okay. It’s still here and it needs to be mentioned. Nora, before we answer this (because I am going to put this back on you), I am gonna say that this ran all over the place. We had a lot of laws get passed saying that you could do that, and then we had them challenged in court, and then they got put on hold, and some of them got approved, and there was — this is the perfect use of the word ‘hodge-podge’ of — that’s an HR term, everybody – a hodge-podge of go, stop, go, stop, yes, no. And we even some states say that if you do it, you’re in trouble, as the employer. 

So, this thing has been changing all over the place. I will say this: I don’t know how you guys out there in medical practices are handling this. I mean, I do know how you’re doing it because we’re helping guide you, but as our own business — and we’re not seeing patients; we do everything remote, over the phone, meetings and stuff — it’s a challenge for us as a team. We are constantly going on some kind of stay-at-home, or we’re losing two people in a department because they’ve been exposed, or they’re sick, or they’ve caught it for the third time. Some of them are vaccinated, others may not be. I don’t know what’s going on there. It has really been difficult. 

I do think one of the things that has helped us is to have as many of us vaccinated as possible so that we don’t actually lose anybody. That has been helpful. I think in a medical setting it becomes even more critical that you know what you can and can’t do in this area. Nora, where are we today?

Nora: Right. In the medical setting, it’s even more interesting, because patients are asking about this, as well. Which we got a lot of questions about it a while back… 

Paul: Especially in the beginning.

Nora: Right. So, the reason I bring this up now, it may seem like old news, but a lot of states are changing their laws now. So, that’s the reason why it’s relevant again. 

Originally what happened was, a bunch of states passed laws mandating the vaccine. Those were in the states that you would think that those types of laws would be passed. Some of them were challenged, but ultimately most of them were deemed legal. Some of those are still in place, and some are not. 

Paul: Right.

Nora: Some have taken back their mandates. So, if you’re in one of those states, you wanna keep checking to make sure that the mandate is still in place. And then there are other states that passed laws, like you said, that said you can’t mandate the vaccine, and others that say that if you do, you have to allow all of these possible exemptions. Some of them even said that the employee could be exempt if they have any reason that they don’t wanna get the vaccine. So, it’s basically like saying you can’t mandate the vaccine. 

And some of those laws have also been amended recently and changed. So, that’s the reason why I think it’s important to keep talking about because we recently released a blog with updates on all the different places that have changed and have these laws, and it’s something you, unfortunately, do have to keep track of. 

So, we can’t really answer this question until we know what state you’re in, and then the question is: Okay, is there a mandate in your state? Do you have to mandate the vaccine? Or, if there’s not a mandate, can you do it, or are there restrictions or specific exemptions you have to give, beyond those required under the general medical and religious exemptions. So, yeah, that’s the status right now. And related to that, we get another question, which is: “If I wanna mandate the vaccine, how do I do that with new employees?” 

Paul: Right. So, obviously, just to explain that a little bit, you’ve got a group of employees already, and they are in some condition of vaccination or not vaccinated for whatever reason and now you have a new employee coming in. Let’s say that (I’m just going to give one of many examples) you have a 50/50 mutiny threat against getting vaccinations from your team. So, some people are vaccinated, and some people are not, and that’s a whole ‘nother can of worms that we’ve been helping people with and how do you deal with it and everything else. But you say, for everybody that comes through the door next, they’ve got to be vaccinated. There is no “You get to choose one way or the other.”

Again, we’re basing this on — this could happen in your state. It’s all legal for someone to have the vaccine and for others to object to it. Nora, I’m gonna answer the first part of it. You’re never gonna be able to get away from the medical and the religious exemptions, which is if you have a bonafide medical reason – and we’re not gonna go down the rabbit hole of what “bonafide” means, but it does have a meaning, and you can require that it be verified. Or, if you have a bonafide religious reason, that one’s really really difficult, then you would still have to give that exemption to that new employee. 

Nora, what about the employee coming in? If we have a variety of vaccination statuses inside of the practice — and I’m gonna remove the medical and the religious exemption, and I’m just gonna say three or four people in the practice, employees, have decided they will not take the vaccination. Can we make the new employee do it? Can we request it? We can’t make anybody go. We can’t be like, “You’re coming with me.” 

[Paul laughs]

[Nora Laughs]

Nora: Right. If they wanna work for you, can you have it as a requirement or a condition of employment? 

Paul: Yeah, thank you, Nora.

Nora: So, basically, if you have not mandated the vaccine for your existing staff, doing it for a new employee is not a good idea. 

Paul: No, it’s not a good idea.

Nora: You wanna have a consistent policy. So, if you’ve mandated it for your staff, then, yeah, you can also mandate it for this new employee, given certain exemptions. Medical and religious are the standard ones. There are actually some states that don’t require it under, you know, a certain level of employees. So, if you are a really small employer you’re not subject to those exemptions, but we would still recommend you follow them. They are so standard. 

Paul: Yeah, yep.

Nora: So, the answer is yes and no. You can require your new employees to be mandated if you’ve required your existing staff to be mandated.

Paul: So, be consistent. It’s the same conversation we have all the time.

Nora: Yep, be consistent. Disparate treatment of similarly situated employees is what gets employers in trouble.

Paul: Oh, here comes…

[Both laugh]

Paul: You guys go get your Google dictionary out and go look up the word ‘disparate’. What she just said will make total sense after that. 

[Nora laughs]

Paul: Is there anything else we need to tell people about this?

Nora: One thing about this that comes up a lot is: “Can you ask them during their interview if they’re vaccinated?” Again, we wouldn’t really recommend that because there are these medical and religious exemptions.

Paul: But you can frame the question so that you get the information…

Nora: Yes, if you’re going to do it, do it very carefully. I think we generally recommend against it because it’s easy to slip up… And what you can do is put something in your job ad saying that employees are required to be vaccinated, except for those with approved medical and religious exemptions, so that person is put on notice. 

Paul: Yep.

Nora: And then, what you can do is, once they’re hired, you can say, “Here is, you know, our policy, here is the exemption form, feel free to fill it out if that’s what you need to do.” But, if you bring it up during the interview, the risk is that they’re going to disclose some sort of protected class…

Paul: Right. And then you use that piece of information. So, this is complicated, everybody. I would.. I mean, we need to explain this for a second. So I decide that, of my last two candidates, I don’t want to go through the process of hiring them and finding out that for some reason they won’t take the vaccination, or they’re going to fight me over it outside of a religious or medical exemption. So, I decide to go ahead and I say, in a kind of a reverse way, “One of the requirements is that all employees be vaccinated. Do you have any issues with that?” And they say, “Yeah I do have issues with that, I have…’ and they tell you why they have a medical exemption, and that is information that you would not have gained in any other way. You would not have made a hiring decision on it. 

And let’s say you don’t hire them after gaining that piece of information. So, “I have lupus”; or “I’m in cancer treatment”; “I’m in remission and I can’t take any of this.” And you learn that piece of information, and now comes my next piece of guidance. You can’t be accused of using a piece of information that you didn’t know in making a decision. Right?

Nora: Right.

Paul: So, if you don’t know that they are in cancer treatment, no one can accuse you of using their being in cancer treatment as the reason why you didn’t hire them. And by the way, that’s one of those things that you’re not supposed to use in your hiring decisions. So, what you don’t know can’t be used against you. So, you’ve got to be careful about how you answer questions and when you gain that piece of information. And just because you know it, or learned it, or it was disclosed to you, doesn’t mean that you used it. Nonetheless, the default for us is, don’t learn it if you can avoid it. 

Nora: Right.

Paul: Because they’re gonna tell you things that you’re not supposed to use. Like, you know, “What’s your favorite hobby?”  

“Soccer. I have 16 kids.” And, it’s like, now you know they have 16 kids. You can’t unhear what you heard. We’re just try to get you not to ask questions that would lead people to give you even more information that you shouldn’t be using in your hiring process. 

Nora: Exactly. We just try to help you avoid as much risk as possible.

Paul: It’s not illegal to ask someone if they plan on getting pregnant. It’s not! When you’re in the hiring process and you’re interviewing candidates. It is not legal to use the answer to that question to weed them out, to say “I’m not hiring you because you told me you plan on having kids.”

Nora: Yes, but why are you asking the question if it’s not relevant?

Paul: And now you’re, okay I’m going to use the other HR term, you’re screwed. 

Nora: Right.

Paul: So, I just wanna make it clear. We keep hearing that there are illegal questions that you can’t ask, or questions you can’t ask because they are illegal. Many of those questions that you see framed that way are not illegal. But using what you learned about it to make your hiring process and then defending why you asked the question in the first place is another. So, I don’t know, I just kind of thought I’d put that…

Nora: Yeah! It’s interesting. It feels illegal when you say it.

Paul: It does.

[Nora laughs]

Paul: Because it’s wrong!

[Paul laughs]

Nora: It’s wrong, because if you are an employer and you’re asking that question, then the question should be relevant to the position, especially in an interview…

Paul: Always. Yeah.

Nora: So if it’s then relevant to the position, it’s illegal.

Paul: So, I think we’ve given every piece of information we can on this. Wow, we went from… where did we start? What was the original question?  

Nora: I don’t know.

[Both laugh]

Paul: It was about vaccines.

Nora: It was, “Can I mandate the vaccine for my staff?”

Paul: Yeah, before you do, please pay attention to what your state and local laws are. Be consistent on what you’re already doing inside of your practice, as long as that consistency is copacetic and compliant with the rules in your state. 

Nora: Right.

Paul: Thanks, Nora. That was good. 

Nora: Of course. Thank you.

Voiceover: Thanks for joining us for this week’s episode of What The Hell Just Happened?. If you have an HR issue or a question, you’d like us to discuss on this podcast, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join our private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: when you improve your workplace, you improve your life.

This podcast is sponsored by CEDR HR Solutions. The old way of keeping your staff HIPAA compliant is over. Train your team anytime, anywhere, and keep them current with automatic reminders to retrain. Why shut down your office and pay a trainer for a day of HIPAA training when you can bring your staff into compliance for free with CEDR’s on-demand system? Get one year of free HIPAA training from CEDR HR Solutions and start training your team today. Visit cedrsolutions.com/HIPAA to learn more!

Jul 26, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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