Recently the Equal Employment Opportunity Commission (EEOC) released a guidance for employers regarding existing employees and new hires as related to the recent novel Coronavirus outbreak, or COVID 19. As with any guidance release from the EEOC employers will have questions as to how this guidance will affect their existing employees as well as new employees.
Whenever a significant document regarding pre-employment background screening or managing employees in general, such as the recent guidance from the EEOC, companies should take immediate notice and work with a well-qualified third-party pre-employment background screening agency in order to remain compliant with law and to help protect the people under their employment.
With the new Guidance companies now have procedures as how to manage a business in the midst of a pandemic. The EEOC is clear in how to manage potential illness and information related to such under the law and Americans with Disabilities Act (ADA).
From AkinGump.com (Apr. 01, 2020):
The EEOC’s guidance clarifies how, consistent with federal disability discrimination laws, employers may (i) screen new hires and employees for COVID-19, including by using temperature checks; (ii) protect the workforce by delaying start dates for new hires and removing employees from the workplace who present a risk of transmitting the virus to others; (iii) notify coworkers who may have been exposed to the virus due to an employee testing positive; and (iv) ensure that employees returning to work are fit to do so through certification by a health care provider. akingump.com/en/news-insights/eeoc-issues-updated-guidance-on-covid-19-and-federal-disability-discrimination-laws.html
Additionally COVID 19 is considered a “direct threat” as considered under the ADA.
From HKLaw.com (Mar. 25, 2020):
The ADA generally prohibits employers from discriminating against applicants or employees on the basis of disability. However, the ADA allows employers to exclude individuals from the workplace if they pose a “direct threat” to the health or safety of themselves or other employees. A direct threat is defined as someone who poses a “substantial risk” to the health or safety of other employees in the workplace that cannot be mitigated or eliminated by reasonable accommodation.
On March 21, 2020, the EEOC declared that the COVID-19 pandemic meets the definition of a direct threat. https://www.hklaw.com/en/insights/publications/2020/03/eeoc-updates-published-guidance-for-covid-19-pandemic-preparedness
It is important that companies and organizations pay close attention to new rules and guidance on how to handle their employees during this crisis. They must remain vigilant in ensuring the people within their organizations and the people they come in contact through won’t be further spreading COVID-19.
From HRDive.com (Mar. 23, 2020):
If hiring, employers may screen applicants for COVID-19 symptoms, EEOC said. It must do so for “all entering employees in the same type of job,” regardless of whether the applicant has a disability. Furthermore, employers may take applicant’s temperatures “as part of a post-offer, pre-employment medical exams.” Employers may also delay the start date of applicants who exhibit COVID-19 symptoms, per CDC guidance, EEOC said. An employer can withdraw a job offer if it needs an applicant to start
immediately but the applicant has COVID-19 or its symptoms. https://www.hrdive.com/news/employers-can-screen-workers-applicants-for-fevers-eeoc-says/574556/
Additionally when it comes to new hires the rules have not changed that much as new hires must be treated fairly and equally throughout the vetting and hiring process, but now must also follow the guidance provided by the EEOC. With the COVID 19 outbreak those rules have been slightly altered but the overarching principle of equality and non-discrimination remain firm.
In the end even in a world undergoing a pandemic it is still extremely important to treat all employees the same way whether it comes to testing or work related practices. Discrimination in the worst sense of the word is never a good thing and usually the worst of practices.
To read more about the new EEOC guidance regarding COVID-19 and how this impacts pre-employment background screening and post-employment practices along with why this Pandemic constitutes a “direct threat” under the ADA read recent CriminalBackgroundRecords.com press release: COVID19 and the EEOC Guidance