Legal Column: Devising New Hiring Criteria Based on COVID-19? Read This First.

It’s like we’re in the upside-down right now. The Equal Employment Opportunity Commission (EEOC) is currently letting employers ask questions that would normally bring an employer to EEOC jail, like, “What’s your temperature?” or “Have you been diagnosed with a disease?” Employers can even withdraw a job offer just because a candidate has COVID-19. It’s so weird! And for recruiters, it just might get weirder.

Imagine this: We’re finally out of the woods with this pandemic. Things are starting to pick up again, and employers are back to hiring at full-steam. However, COVID-19 still looms large, and hiring managers are concerned about bringing workers into the workplace. So they’ve started to put COVID-19 vaccinations as a job requirement and have a whole new list of screening questions, like, “Do you have a pre-existing condition that could put you at greater risk for COVID-19?” or “Are you over 60 years old and therefore in a high-risk group?” 

Meanwhile, managers are demanding that recruiters ask to review immunity cards before passing a candidate on. They argue that this is a workplace safety issue and they’re just trying to keep people safe.

Can companies do this? Probably not. A declaration of a pandemic expands an employer’s rights to ask medical questions during the pandemic per EEOC guidance, but once the Centers for Disease Control and Prevention and/or the World Health Organization declares an end to the pandemic, the full force of the Americans with Disabilities Act (ADA) will go back into effect.

Employers won’t be able to ask medical questions that could be seen as a medical examination before a conditional offer of employment. Employers won’t be able to ask about vaccinations unless such a vaccinations are directly tied to the job. Employers won’t be able to ask about a person’s age.

So before you devise new hiring criteria, here are some important rules to consider:

  1. The ADA prohibits employers from requiring medical examinations in hiring until after a conditional offer is made — and only when a candidate’s medical condition has a direct relationship with the job. (Think medical fitness for commercial drivers.)
  2. It is the very unusual circumstance that would allow an employer to ask if a candidate has been vaccinated against a particular disease. That very unusual circumstance? When being vaccinated is required for the job. Not just a “good-to-have,” but a bona fide job requirement. A hospital hiring for a respiratory therapist could be that rare example. A company hiring software developers, editors, receptionists, etc? Not so much.
  3. A candidate’s medical condition is always confidential, even during a pandemic. Managers don’t automatically get to know this information about a candidate. This will also be true regarding whether a candidate has been exposed to COVID-19 or has been vaccinated. 
  4. Disability discrimination is illegal. Not hiring someone because the individual has asthma or diabetes will get you into a lawsuit quickly.
  5. Age discrimination is also illegal. Not hiring someone because they could be in a higher-risk group because of age will also get you into a lawsuit quickly.

We’re in strange times. And we will get out of these times. That said, employers cannot take the leniency of EEOC during this pandemic to create new job requirements that run contrary to the ADA. That would only make life worse.

Kate Bischoff, ERE's legal columnist, is an overly enthusiastic, sarcastic, and opinionated management-side employment attorney and human resources professional. She works closely with management, HR, and technology companies to improve organizations and make it easier to recruit and retain talent through easy-to-understand policies, easy-to-use technology, and easy-to-explain compliance initiatives.

Prior to starting her own business, Kate served as the HR officer for the Consulate General Jerusalem and U.S. Embassy in Lusaka, Zambia. Kate has also been recognized by The New York Times, CNN.com, Wall Street Journal, USA Today, National Public Radio, and other journalistic sources as a leading authority on harassment, technology in the workplace, and employment law.

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