“If you fail to prepare, you’re prepared to fail.” – Olympian Mark Spitz
It’s time for employers to get their game plans ready on how to safely return to work. This article focuses on how employers with 15+ employees hire new employees and what information employers can gather related to the applicant’s health and potential exposure to COVID-19 under the ADA.
Cashflow Accounting Firm is hiring a new accountant and two new secretaries. After making conditional offers to both secretaries, the firm has these candidates screened for COVID-19 symptoms. The accountant candidate does not submit to the same screening. Is this legal?
According to the EEOC, the answer is “Yes.”
- Employers may screen if it has a practice of screening all applicants for the same position.
- Employers may screen job applicants for COVID-19 symptoms after making a conditional job offer.
- Employers can delay the start date of an applicant with COVID-19, because the CDC guidelines provide that the employee should not be in the workplace.
- If employers need an applicant to start work immediately but the applicant cannot due to COVID-19, employers can withdraw the offer since the applicant cannot safely enter the workplace.
- If an applicant is 65 or older, or a pregnant woman, employers cannot unilaterally postpone the start date or withdraw a job offer from these applicants because both categories of applicants are at a higher risk of COVID-19. The employer if possible, should allow the employees to telework or discuss with the individuals if they would like to postpone the start date.
Delaying Start Dates Because of COVID-19
Shutters-R-Us wants to hire 10 new sales agents. The company makes offers to 7 persons between the ages of 25-35 (one of which is pregnant), 2 positions to candidates between 35-64 and 1 position to a 70 year old candidate. All candidates live in states that are opening early to resume business. Can all of these candidates request a postponement of their start date?
According to the EEOC, the answer is “No.”
Based upon the current information from the EEOC, only the candidates who are pregnant and 70 years of age can make a request to postpone their start date because they are in a higher risk category.
SLG is staying tuned to upcoming EEOC and U.S. Department of Labor regulations to address employment issues in the days to come.