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:
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.
