Hiring During the COVID-19 Pandemic: What You Can Do

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Despite the ongoing COVID-19 outbreak, business—and hiring—must go on. As the EEOC continues to update its guidance regarding employment practices during the pandemic, here are common questions regarding how to implement legally-sound hiring practices while protecting your workplace.

Q: May I screen job applicants for COVID-19, and if so, how can I screen them?

Answer: Yes, but only if screening takes place after a conditional job offer is made, and only if all entering employees in that job type are subject to screening. This is consistent with the Americans with Disabilities Act’s rule permitting only post-offer medical inquiries and examinations of all applicants, regardless of an applicant’s disability status. Employers should be aware, however, that the company may be required by state law to cover any costs associated with a medical examination and that other state laws may further restrict employers ability to screen applicants. Employers should also be monitoring the most up-to-date information from the CDC concerning current COVID-19 symptoms, as well as timelines associated with individuals displaying these symptoms, while understanding that a particular symptom might not be determinative of the illness.

Q: May I test applicant’s temperatures as part of the post-offer screening test?

Answer: Under federal law, yes; but we recommend proceeding with caution before implementing such a policy. While a fever can be a symptom of COVID-19, some individuals might not exhibit a fever, and it may not be an effective way to screen applicants for the virus. In addition, there are other potential legal implications, including privacy concerns, associated with this type of testing. If you are considering testing applicant temperatures, we recommend reviewing our blog post on this issue before moving forward.

Q: Can I ask an applicant about recent travel to areas affected by a COVID-19 outbreak?

Answer: Yes, but as with other types of screening, this inquiry should occur after a conditional job offer and to all entering employees in that job type. The EEOC has advised that asking about recent travel is not a disability-related inquiry even if symptoms are not present, and that “employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.” If an employee has travelled to an area affected by the virus, the employer should conduct a risk assessment and based on the particular circumstances in accordance with CDC guidelines. Employers should be mindful to phrase the question in such a way that it is capturing only travel that is within the 14 day window, or most recent timeline, set forth in CDC guidelines.

Q: Can I ask an applicant whether a household member has tested positive for the virus?

Answer: Yes, but proceed with caution. The CDC categorizes employees with a positive-testing household member as medium or high risk and recommends taking precautionary measures even when the exposed individual is asymptomatic. However, employers should keep in mind that they may not discriminate against employees based on family status, and the employee’s response to this inquiry could yield information that an employer typically should avoid trying to learn during the hiring process (including sexual orientation, marital status, and parental status). Accordingly, employers should not ask questions regarding an employee’s “spouse” or “child” and refer only to a “household member.” As with other screening measures, this inquiry should be only be made after a conditional job offer and to all applicants for that job type, and the employer should conduct a risk assessment to determine next steps in accordance with CDC guidelines.

Q: An applicant I want to hire has symptoms of COVID-19. Can I delay the applicant’s start date based on that?

Answer: Yes. The CDC currently advises that an individual who has COVID-19 or symptoms associated with COVID-19 should not be in the workplace. The EEOC has advised that “the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.” However, it is important to stay up-to-date on CDC recommendations and guidance applicable to all workplaces, as well as the CDC’s specific guidance for particular types of workplaces (for example, employees in health care facilities). Employers should also monitor whether symptoms continue to be associated with COVID-19; this requires employers staying up to date on the most recent CDC guidelines. Employers should develop a policy to maintain regular contact with applicants whose hire date has been delayed for updates on the employee’s symptoms and progress.

Q: If I need an applicant to start immediately, and cannot hold the position open, am I allowed to withdraw a job offer if the applicant has COVID-19 symptoms?

Answer: Yes. Because under current CDC guidance an applicant with COVID-19 or symptoms of COVID-19 would not be able to safely enter the workplace, the employer may withdraw a job offer in that situation. However, it is important to apply this type of policy equally among all applicants, whether the applicant is unavailable to start immediately due to COVID-19 symptoms or another reason.

Circumstances are changing at a rapid pace, and staying updated on applicable CDC recommendations regarding COVID-19 is key to staying compliant with the law while maintaining and protecting your business. In addition, it is important to remember that EEOC guidance is only the starting point—many state laws may provide additional protections for employees and applicants beyond those established under federal law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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