Episode 104: Can I Mandate Vaccines for New Employees?

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 trying 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.

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