During the COVID-19 pandemic, employers need to make sure that during the hiring process they comply with all the state and federal laws, including the Americans with Disabilities Act, and understand workers’ rights.
The Equal Employment Opportunity Commission confirmed that employers are permitted to screen applicants for employment for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same job type.
Furthermore, the ADA permits an employer to take an applicant’s temperature as part of a post-offer, pre-employment medical exam, although the EEOC correctly points out that some people with COVID-19 do not have a fever.
For any applicant with a conditional job offer who has tested positive for COVID-19 or has symptoms of the virus, the employer can delay the start date of the applicant because the Centers for Disease Control and Prevention guidance states that these individuals should not be in the workplace.
“The ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so,” the EEOC said in its recently updated Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance that addresses hiring and other considerations for employers during COVID-19. The guidance initially was issued in 2009 in response to the H1N1 virus.
In fact, the EEOC’s pandemic preparedness guidance goes so far as to make lawful the withdrawal of a job offer if it needs an applicant to start immediately but the individual has COVID-19 or symptoms of it, since that individual cannot safely return to the workplace.
However, an employer cannot rescind a job offer merely because a post-offer medical exam reveals that the applicant has a medical condition that puts the individual at increased risk of complications from COVID-19.
The EEOC notes the exception would be if an individual’s medical condition poses a direct threat within the meaning of the ADA.
The direct threat determination must be based on reasonable medical judgment relying upon the most current medical knowledge and/or best available evidence, such as objective information from the CDC or state or local health authorities. The assessment must be individualized, considering the imminence of the risk, severity of the harm and availability of reasonable accommodations to reduce the risk.
As the EEOC notes, “Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat.”
None of these questions about medical conditions should be asked of an applicant prior to a conditional job offer.
Employers also should clearly articulate the job responsibilities — including whether on-site attendance is an essential function of the job — to all applicants.
Employers should ask if the applicant can perform the essential functions of the job with or without reasonable accommodations, but the employer should not ask the applicant to identify if a reasonable accommodation will be necessary. These inquires can only be made after a conditional offer of employment.
Check out the CDC for updated guidance on business best practices, including addressing employees with symptoms of COVID-19, at https://www.cdc.gov/coronavirus/2019-ncov/community/general-business-faq.html.
Information on the ADA and pandemic preparedness can be found at EEOC.gov.