Employer Job Interviews and Covid-19 Questions

Intro: [00:00:01] Broadcasting from the Business RadioX studios in Atlanta, it’s time for Dental Law Radio. Dental Law Radio is brought to you by Oberman Law Firm, a leading dental-centric law firm serving dental clients on a local, regional and national basis. Now, here’s your host, Stuart Oberman.

Stuart Oberman: [00:00:26] Hello, ladies and gentlemen. And welcome to Dental Law Radio. Our previous segments have dealt specifically with COVID-19. We’re going to conclude this series with what happens regarding interviews. So, if we digress a little bit on our first segments, we went through complex governmental matters, employee resistance, mandates.

Stuart Oberman: [00:00:55] Now, what we’re seeing is that in this job market, we’re seeing a lot of turnover in our dental practices and, actually, across the board on our nondental clients. So, we’re getting a lot of questions. Again, this particular topic, employer job interviews, COVID-19 questions, that’s a whole another day – that’s a whole another day that we could speak about for another eight hours. But one thing that we want to do, we just want to touch on some pros and cons, some yes and nos, things you can and can’t do on interviews. Because I will tell you, in today’s world, if you think that the potential employees are not recording your conversations, your job interviews, you have another thing coming. I will assure you. And also, nowadays, we’re doing Zoom interviews, and we’re hiring people without even shaking the hands and kissing the babies. So, then, what do you do? Now, you’re on Zoom. And you don’t even know you’re being recorded on Zoom.

Stuart Oberman: [00:02:09] So, what happens is, is that, now, someone who’s not experienced in your office, it could be a wide variety of positions that do your “hiring and firing,” that are not HR-trained, that either have been the old front desk; or, now, we’ve got the hygienist who’s now interviewing; and now, we got the office manager who used to answer the phones three weeks ago, now, they’re doing the interviews. So, you’ve just opened up the door to huge potential problems if you do not – and I repeat – if you do not understand what you can and cannot do.

Stuart Oberman: [00:02:55] So, very, very succinctly. So, we get these questions, “Can I require vaccinations?” and tell people who I’m hiring, “You are now required to get a vaccination the first day”? The answer is yes. Now, that guidance is constantly changing. Last year when we started all this, COVID-19, the overall prevailing view was no because there is too much risk. Now, we’re seeing mandates on top of mandates, on top of mandates from employers. So, if you have procedures in place, if you have dotted all of your Is and crossed your Ts regarding compliance with the Americans with Disabilities Act, EEOC, the CDC, OSHA, EEO and the FDA, then, yes, there’s probably a pretty good likelihood that you will be able to require that new hires be vaccinated, but you can’t do it arbitrarily.

Stuart Oberman: [00:04:02] Now, I will say this that guidance from the ADA and EEOC, in many cases, is unsettled. So, the guidance today is yes, we can mandate, but we have to have very, very stringent federal law, state law, local law compliance on these policies. So, then, what happened is, is that let’s say you mandate that your hire does not want to get a vaccination. So, now, you’re in a couple areas. You’re in the ADA, American with Disabilities Act, EEOC because you love this new employee, this employee-to-be. So, you have to indicate that you’ve got an accommodation. medically and disability and religiously for that person because they do not and cannot get vaccinated for a wide variety of reasons.

Stuart Oberman: [00:05:12] Now, I will tell you, the sloppiest thing our dental practices do is try to maintain HR. HR is a nightmare for our dental practices. And I’ll say our employer clients, in general. So, one thing you cannot do is that you cannot intermingle the vaccination exemptions, protocols or compliance into the employer’s regular personnel file. These have to be treated as separate confidential medical records.

Stuart Oberman: [00:05:55] Now, we’ve had cases where the employers have literally given over the employee files to them to manage. That is literally like putting the fox in the henhouse. You cannot give your employees their own personnel files to manage, because I will guarantee you, if that employee is fired, leaves, discharged, that record is gone. And then, you’re going to ask me for advice. And I would say, “Where’s your file?” Are you going to say, “I don’t have it.” And I’m going to say, “Where is it at?” And then, you’re going to say, “The employee had it.” I’m going to say, “Great. At least, you had one but, now, we’re in a whole different ballgame.”

Stuart Oberman: [00:06:40] So, on the mandates, the EEOC provides guidance that employers may lawfully — a vaccination policies, even for those that are just starting. Now, the key is that’s a lot of variance there, that’s a lot of governmental guidance agency-wise. So, you have to constantly keep track of what’s going on with all these agencies. Again, I know I keep saying it, OSHA, CDC, EEOC, EO, FDA, all those will change guidance in a heartbeat, and you’ve got to keep track of that, and you have to adjust your written policies – and notice I said written policies – either way. You’ve got to stay on top of this. And honestly, you can’t leave it to one person in your office, HR to cover this. You can’t leave it to payroll. Half the time you’re lucky if you get your payroll correct from payroll companies; nevertheless, handled to HR on a complicated matter like this.

Stuart Oberman: [00:07:42] So, again, I will stress, stay on top of this. Stay on top of this. Seek counsel if you have any questions, concerns whatsoever. If you want to reach out to us, please feel free to email me directly at stuart@obermanlaw.com. We try to provide as much guidance as we can. You could get added to our newsletter. We try to put out publications as much as possible, at least a couple of times a month, on these kinds of issues, related to vaccination issues. We’ll be doing a lot of industry webinars and some live events. So, the resources are out there. Use them because this is an extremely difficult trap for the unwary.

Stuart Oberman: [00:08:37] So, that is really going to conclude our multipart segment on COVID-19, really for now, until the government issues additional guidance. Then, we’re going to have to, obviously, modify some things. So, let’s jump with thank you for joining us. It has been a pleasure. If you have any questions, concerns, please feel free to reach out to us. And have a great day. And we look forward to having you join us on subsequent Dental Law Radio podcasts. Have a great day.