Clarification update on testing issues for employees.
Testing for Coronavirus
The Equal Employment Opportunity Commission (EEOC) recently released guidance on testing job applicants and returning employees for coronavirus. Employers may screen job applicants for the Coronavirus after making a conditional offer, but before an individual begins working, provided that all employees in the same job category must be subject to the same examination requirement.
EEOC Hiring Guidance also states:
- Employers may delay the start date of employees with COVID-19 or its symptoms.
- Employers may withdraw job offers to applicants who have COVID-19 or its symptoms if they need the applicant to start work immediately.
- Employers may require employees to work from home. They may also rescind a job offer for applicants who refuse to work at the company’s designated work location, whether that be on-site or from home.
Employers May Require Quarantine or Work-at-Home Arrangements as a Condition for Employment
- Employers have an obligation to protect the health of their employees, so no person with coronavirus or associated symptoms should be in the workplace. This obligation extends to candidates and new hires.
- If the employer has legitimate concerns about a new hire’s exposure, they can require the employee to remain offsite for a period of time, or delay their start date.
- Consistent and nondiscriminatory application of these standards or any COVID-19 related company policies and procedures are required.
- Employers may require that employees submit doctors’ notes certifying their fitness for returning to work if they have been diagnosed with the virus.
Employee Protections – Cautionary Considerations
- Employees may have protections if a refusal to work on-site is due to legitimate health and safety concerns.
- Under certain circumstances, a request to work remotely, rather than onsite, could constitute a request for reasonable accommodation under the Americans with Disabilities Act [ADA].
- There are anti-retaliation protections for candidates and employees who refuse to work onsite if doing so would violate any federal, state, or local orders directing nonessential businesses to cease operations or have employees work remotely.
Choosing not to Hire – Refusing to Work Onsite or from Home
- Employers need to make these types of decisions on a case-by-case basis while maintaining a consistent application of these standards.
- Employers are not required to accommodate generalized anxiety about contracting the virus. However, they must apply the same ADA reasonable accommodation’ standards when a candidate has disclosed an underlying health condition.
- Some employment positions cannot be accommodated by ADA standards but employers will need to document how the company reached that conclusion about the position.
Screening Results Are Confidential
The EEOC has advised that federal, state, and local public health guidelines be followed. Keep in mind that any medical screening, including temperature checks, are considered medical examinations. The results from the medical examinations are confidential medical records.
Expect Revised Guidance on Coronavirus Testing Rules
EEOC hiring guidance on this topic will change as time progresses. None of these decisions have been tested in the courts, so employers are advised to tread carefully and consultations with HR specialists and legal counsel is advised. If in doubt about this topic, or any other hiring or employment issue, call the HR Specialists at Cardinal Services at (800) 342-4742. We’re here to help!