What Hiring Regulations During COVID-19 Look Like

Time to read: 6 minutes

Hiring Regulations During COVID-19 Summary:

• Clarification on hiring regulations through the EEOC.
• Understand what employers can and cannot do when hiring during a pandemic as explained in the Pandemic Preparedness in the Workplace and Americans with Disabilities Act.
• What steps employers can take to keep their workforces safe and healthy – remote and on-site.

What are the hiring regulations around disabilities and pandemics?

The workforce took a hit as the coronavirus hit. The uncertainty during this time is palpable. Onboarding and hiring regulations during COVID-19 continues for many industries and sectors. It is no question that those companies that are still onboarding employees are successfully doing so from a remote capacity. However, from a workplace, workforce health standpoint: what should hiring during COVID-19 look like? How do you keep business going while protecting your existing workforce?

The EEOC’s Pandemic Preparedness in the Workplace and Americans with Disabilities Act lays out guidelines around vetting, hiring, and managing employees during the COVID-19 pandemic. The Act goes over disabilities and pandemic preparedness hiring regulations; as of March 21, 2020, the EEOC made amendments to specifically accommodate the COVID-19 pandemic.

Vetting Applicants During COVID-19

According to guidance from the ADA, there are to be no questions around disability or medical examinations during the hiring process (before an offer is presented). The ADA defines disability-related and medical examinations as follows:

• A disability-related inquiry is one that asks specifically around disability or conditions, which could potentially discriminate against the candidate from employment.
• A medical examination is just that – examination or procedure to determine a person’s physical or mental impairments or health; Determining factors include, the use of medical equipment, invasiveness, reveal pre-existing physical or mental impairment, administered or interpreted by a medical professional. Ex: Asking an incoming employer to take their temperature is considered a medical examination.

The Americans with Disabilities Act protects employees from disability discrimination, which is relevant during times of a pandemic. Specifically, companies are prohibited to ask questions around COVID-19 while vetting and interviewing candidates.

Onboarding, Hiring During COVID-19

That said, once an offer is made to a candidate, an employer is permitted to ask disability-related questions and request medical examinations.

In the case of the COVID-19 pandemic, only after an offer is made is an employer allowed to ask questions around diagnosis, symptoms and immune system strength (if applicable), and must ask all incoming candidates.

In the case of start dates, employers are to use common sense and discretion when it comes to candidates who have COVID-19 or display symptoms. If a candidate has COVID-19 or displays symptoms, an employer can delay the start date or withdraw the job offer. The employer is protected by current CDC guidance: individuals with COVID-19 or symptoms associated should not be in the workplace.

Employment During COVID-19

The Pandemic Preparedness document continues to outline regulations for those already employed. These regulations apply to those in offices and will lay the groundwork for health protocols when/if the workforce resumes business on-site. A few of the regulations as they pertain specifically to COVID-19 include:

• Employers can send employees home displaying symptoms of COVID-19 or related symptoms.
• Employers can maintain medical information on an employee’s condition as long as they are experiencing serious symptoms related to COVID-19 as long as the medical information is kept confidential. Questions and information on a pandemic illness do not fall under a disability as a pandemic illness poses a direct threat to the workforce.
• Employers can ask questions to employees returning from travel around potential exposure. Employers should not wait to see if symptoms present themselves. In the case of COVID-19, diagnosed individuals can be asymptomatic.
• ADA-covered employers are urged to encourage, not required, employees to get vaccinated for influenza. More details are anticipated as more information comes out in regards to a COVID-19 vaccine.

Additionally, here is another resource outlining employer considerations during COVID-19.

COVID-19 Updates with Profiles

Profiles continues to monitor the current business and economic climate. Stay updated through our Coronavirus Updates as we continue to provide digestible content on hiring, job searches, working remotely, and other relevant topics.