Employers may be tempted to ask job applicants about COVID-19, and whether or not the applicant has contracted the virus and since recovered. This line of inquiry may be triggered by a belief that a candidate who has developed antibody-based immunity would be unlikely to be infected a second time. Seems reasonable, even responsible, right?
Well, anyone familiar with the employment law arena is likely aware that although federal agency-based rulemaking may have the best interest of our citizens at heart, it can leave employers scratching their heads, confused about intent, and concerned about compliance.
At the heart of immunity-based inquiries are federal non-discrimination laws which place limitations on employers asking about medical information, even in the current COVID-19 safety-conscious environment. The Equal Employment Opportunity Commission (EEOC) is the agency charged with responsibility for enforcing federal employment laws, including those covering disability-related inquiries and medical exams.
According to guidance posted on the EEOC website, the Americans with Disabilities Act (ADA) has restrictions on when and how much medical information an employer may obtain from any applicant or employee. Disability-related inquiries and medical exams are generally prohibited prior to making a conditional job offer to an applicant. They are generally permitted between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. Once an employee begins work, any disability-related inquiries or medical exams must be job-related and consistent with business necessity.
Consequently, “immunity discrimination” may develop when employers indicate a preference for job applicants who have already contracted COVID-19, and are theoretically less likely to spread infection, and/or require time off from work to recover from a future infection. Recruiters and hiring managers may believe that such applicants are more willing and able to travel and participate in live face-to-face meetings.
Employers may be unaware that their line of inquiry during job interviews and/or application-based questioning may potentially be immunity discrimination. Avoid asking candidates whether they’ve had COVID-19, until after an offer of employment has been made.
With regard to current employees, if decisions need to be made with respect to project staffing or travel-related opportunities for which an employer believes face-to-face engagement will be critical, it is advisable to carefully re-think these decisions and avoid inquiring about eligible employees’ COVID-19 recovery status.
Finally, employers would also do well to remember the following with respect to COVID-19, job applicants and current employees:
An employer may:
- Screen job applicants for symptoms of COVID-19 after making a conditional job offer as long as it does so for all prospective employees in the same type of job.
- Delay the start date of an applicant who discloses COVID-19 and/or symptoms. This is based on current CDC guidance stating that an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
- Withdraw a job offer when it needs the applicant to start immediately, but the individual has reported COVID-19 and/or symptoms. Based on current CDC guidance, this individual cannot safely enter the workplace and, therefore, the employer may withdraw the job offer.
- Require employees to take a viral diagnosis test (not antibody test) as a condition of returning to a work facility to determine if they’re actively infected. The ADA does not prohibit these tests given that the direct threat of the virus on other employees meets the job-related/consistent with business necessity requirements of the ADA.
- Require employees to wear masks (in accordance with the national mandate) and have their temperature taken daily.
Managing the many responsibilities that fall to human resources coupled with the challenges presented by the pandemic can be difficult. The HR Consulting Practice at Univest Insurance provides clients with a broad range of HR compliance, operational and payroll services. To learn more about how we can support your HR team, contact us at 267.646.4467or email@example.com.
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