Employers are faced with new challenges and responsibilities during this COVID-19 pandemic. While some businesses have placed their hiring efforts on the back burner, many companies are suddenly finding they need to hire new employees to meet their business’ needs during this pandemic. Employers must now navigate the hiring process while maintaining the balance between an employer’s obligation to keep its workplace safe and a job applicant’s right to privacy.
How can companies appropriately and legally conduct interviews while adhering to social distancing guidelines? Can employers require job applicants to be tested for COVID-19? After extending a job offer, can an employer require the employee to work from home? Or can an employer choose not to hire someone if the applicant refuses to work onsite? Below we answer some common questions regarding how employers can implement legally-sound hiring practices and policies to keep your workplace and employees safe.
Should you conduct live or remote interviews? While some employers may prefer to bring into the workplace to interview the candidates in person, requiring a candidate to come in can pose certain safety issues in the workplace. Although employers are turning to virtual video-conferencing channels such as Zoom, Google Hangouts or Skype to conduct business and practice social distancing, if it is imperative that the interview take place in person, employers must ensure all appropriate safety precautions are taken, such as wearing face masks, sitting at least six feet apart, etc. In the alternative, if an employer chooses to conduct a virtual interview, the employer should take into account certain legal considerations that may arise. For example, if the employer chooses to record the interview, certain state laws require the employer to obtain consent before the interview. However, it’s a good rule of thumb to inform all applicants that the employer intends to record the interview.
Can employers screen job applicants for COVID-19? Employers are permitted to screen applicants in the same manner that it screens employees and visitors entering the workplace.
Can an employer choose not to hire an applicant who refuses to work onsite? This type of situation must be decided on a case-by-case basis and employers must take into account the particular circumstances of each scenario. Employers should note that the ADA does not require employers to accommodate an applicant’s generalized anxiety relating to contraction of COVID-19, but should apply the same ADA “reasonable accommodation” analysis if the applicant disclosed their underlying health condition that may place them at a higher risk for contracting COVID-19.
Can employers require a newly hired employee to work from home? If it has become apparent to the employer that a new hire poses a legitimate health concern because they were exposed to COVID-19, the employer may require the newly hired employee to work from home, or may delay the employee’s start date. Employers must remember that they are obligated to provide a safe working environment for all employees. However, employers must consistently apply this policy to all employees in order to avoid potential employment litigation. Employers should also develop a policy for the employer to maintain regular contact with applicants whose hire dates have been delayed to receive updates on the employee’s symptoms.
If an applicant is unable to start working due to COVID-19 symptoms and the employer cannot hold the position open, can the employer withdraw the job offer? Yes, employers are permitted to withdraw the job offer if an applicant cannot start working due to COVID-19 symptoms and the employer cannot hold the position open. Under the current guide of the Centers for Disease Control, applicants with COVID-19 or symptoms of COVID-19 are not able to safely enter a work environment. If an employer is going to withdraw a job offer, employers must apply this type of policy equally among all applicants, whether the applicant is unavailable to start working immediately as a result of COVID-19 symptoms, or another reason.
For more information and to discuss hiring employees in this new environment, please feel free to contact a PMP HR Director.