Employers are now asking employees questions like, “What’s your temperature?” or “Have you been diagnosed with a COVID-19?” These questions would normally bring an employer to EEOC jail. So now 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 come up with a 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.
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Source: ERE Recruiting Intelligence
