Hiring, COVID, and the Americans with Disabilities Act

While we are still in a pandemic, hiring is picking up. In September, the US economy gained 661K jobs. Hiring amid a pandemic raises questions on what employers can do to protect their employees and clients while not running afoul of the EEOC’s Americans with Disabilities Act (ADA).

During hiring, the ADA does three things:

  1. The ADA regulates employers’ disability-related inquiries and medical examinations for all applicants and employees, including those who do not have ADA disabilities.
  2. The ADA prohibits covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e. a significant risk of substantial harm even with reasonable accommodation).
  3. The ADA requires reasonable accommodations for individuals with disabilities (absent undue hardship) during a pandemic.

The EEOC has issued guidance for hiring during a pandemic in a question and answer format:

Q: If an employer is hiring, may it screen applicants for symptoms of COVID-19?

A: Yes. 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 entering employees in the same type of job. This ADA rule allowing post-offer (but not pre-offer) medical inquiries and exams applies to all applicants, whether or not the applicant has a disability.

Q: May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

A: Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.

Q: May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

A: Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. CDC has issued guidance applicable to all workplaces generally, but also has issued more specific guidance for particular types of workplaces (e.g. health care employees). Guidance from public health authorities is likely to change as the COVID-19 pandemic evolves.  Therefore, employers should continue to follow the most current information on maintaining workplace safety.   To repeat: the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.

Q: May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

A: Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

This guidance provided by the EEOC applies during a pandemic—not normal times, so we will have to watch for updates. More information regarding pandemic and post-pandemic practices can be found in the EEOC Guidance found here: https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

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