As re-opening plans begin to unfold around the nation, employers are reviewing their hiring procedures in a new COVID-19 reality where safety is a top priority. The only thing that is certain during these uncertain times is that rules and guidance for businesses will be constantly changing throughout each phase of re-opening. Your hiring methods need to keep pace with these changes.
No doubt you’re already staying informed about your state, county, and town regulations regarding employees returning back to work. It’s equally important to be informed about changes in hiring practices in response to the COVID-19 pandemic.
Regardless of the timing and scope of your re-opening plan, it’s critical that your hiring practices during the pandemic conform with the updated guidelines from the Equal Employment Opportunity Commission (EEOC) and The Americans with Disabilities Act (ADA).
The ADA protects applicants and employees from disability discrimination. Under the ADA, employers may not make disability-related inquiries and require medical examinations of applicants and employees, except under limited circumstances such as the COVID-19 pandemic.
Pre-employment medical examinations may already be a pre-requisite for your applicants due to the nature of your business. For example, employers may ask job seekers to prove that they can lift a set amount of weight, which is a requirement for successfully performing that job. But for many employers, the pre-employment medical exam is uncharted waters.
Here are answers to FAQs regarding applicants and COVID-19 to help you avoid conflicts with fair hiring practices:
1. Can an employer screen a job applicant for symptoms of COVID-19 during the hiring process?
Yes. The EEOC has indicated that an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided the employer does so for all applicants in the same job classification on a post-offer basis.
#2. Can an employer take an applicant’s body temperature as part of a post-offer, pre-employment medical exam?
Yes. While the EEOC indicates that taking the body temperature of an applicant or employee is considered a medical examination, the ADA permits medical exams after an employer has made a conditional offer of employment to an applicant. However, the EEOC reminds employers to be aware that not all individuals who have COVID-19 have a fever.
#3. Can an employer postpone the start date of an applicant who presents symptoms or who has been confirmed to have COVID-19?
Yes. As with current employees, the EEOC confirms that the ADA is not being interpreted to prevent an employer from following CDC recommendations, and thus an employer may exclude symptomatic applicants from the workplace and delay their start date until released by their healthcare provider. Direction and recommendations from public health authorities will likely change as the COVID-19 pandemic further develops, and employers should continue to follow the most recent guidance from the CDC and state and local public health authorities.
#4. Can an employer withdraw a job offer to an applicant who is symptomatic or is confirmed to have COVID-19?
Yes. The EEOC has stated that an employer may withdraw the job offer of an applicant who has symptoms or is confirmed to have COVID-19 based on current CDC guidance indicating that such individuals should not be in the workplace.
Keeping your current employees and new hires safe and well will remain your top priority for the foreseeable future. Be sure to update your employee and recruiting communications accordingly to reassure them that the hiring practices you are adopting are aimed to benefit them and the entire team.
