Hiring has grown more complicated with every passing year, but none have been more complicated than right now, in 2020. Pre-employment exams, post-employment questions, temperature screening, doctor’s note requirements and PPE questions are just some of the reasons staffing firms are struggling. It’s extremely difficult to know what is legal to do, ask or require as an employer right now.
As of March 11, 2020, the Coronavirus disease was declared the fifth pandemic in the last century. The EEOC had updated new information into the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, due to Covid-19.
Maybe some straightforward questions and answers employers have asked regarding how to handle hiring during the Covid-19 pandemic, will help:
- Can an employer screen an applicant for symptoms of Covid-19? Yes, after making a conditional job offer, if you do so for all new employees in the same type of role.
- Can an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam? Yes, after a conditional offer of employment any medical exams are allowed but know that some people with Covid-19 do not have a fever.
- May an employer delay the start date when an applicant has Covid-19 or symptoms? Yes, according to CDC guidance, such persons shouldn’t be in the workplace.
- Can an employer withdraw a job offer when the applicant is to start immediately but has Covid-19 or symptoms? Yes, based on CDC guidance, this individual cannot safely enter the workplace.
- Can an ADA covered employer require employees who have been away from the workplace during a pandemic to provide a doctor’s note certifying their fitness to return to work? Yes, this is permitted under the ADA as they are not disability related but as a practical matter consider health care professionals may be too busy during a pandemic to provide fitness-for-duty documents. You may allow local clinics to provide a form, stamp or e-mail to certify your employees doesn’t have the pandemic virus.
- During a pandemic, can an employer ask why an employee has been absent from work if suspected for a medical reason? Yes, asking why an individual did not report to work is not a disability-related question. You are always entitled to know why your employee has not reported to work.
- During a pandemic, can an employer require its employees to wear PPE such as face masks, gloves and gowns? Yes, however, an employee with a disability who needs a related reasonable accommodation under the ADA such as non-latex gloves should be provided with these, absent undue hardship.
- During a pandemic, may an employer require its employees to perform regular hand washing and other infection control practices? Yes, requiring infection control practices does not implicate the ADA. Coughing and sneezing etiquette, proper tissue use, and disposal are other examples.
- Can an employer encourage employees to telework as an infection control strategy? Yes, this is effective and familiar to ADA covered employers as a reasonable accommodation. Also, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation.
- May an ADA covered employer ask employees who do not have symptoms to disclose if they have a medical condition that the CDC says could make them vulnerable to complications? No, this is prohibited by the ADA. However, employees experiencing flu like symptoms should be allowed to stay home to benefit all employees.
What an employer may or may not ask changes before an offer of employment is made, after the offer is made, before the person begins working, and during employment. During employment, the ADA prohibits employee disability related inquiries or medical examination unless they are job related and consistent with business necessity.
Employers are advised to follow guidance from the CDC as well as their state health authority to best slow the spread and protect employees, customers and the public. The ADA and Rehabilitation Act do not interfere with employers taking this advice.
COATS Staffing Software created a custom program months ago to assist our clients in reflecting Covid-19 on the 941 Form. COATS provides the ability for users to pull multiple batches holding COVID payroll transactions to sort by, as required by the federal government for tax credits.
From customization made based on new federal or state guidelines to processing payroll and invoicing clients, COATS helps you run a more efficient workforce. With a complete software solution for your staffing firm, COATS will make your and your staff’s lives easier. Help them do more for your organization with COATS. Schedule a demo with us today!