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hiring during coronavirus shelter in place

Hiring during COVID-19 Shelter-in-Place: Legal Best Practices

While many companies are reducing staff due to the coronavirus pandemic, others are continuing to hire. While you shouldn’t meet face-to-face, you may have additional questions about screening and interviewing candidates remotely. We have curated a list of answers to commonly asked questions from companies that are looking to add new employees or workers to their teams during a shelter-in-place order.

Questions about the coronavirus pandemic?

Visit the Coronavirus Legal Center and ask a lawyer today.

Can the entire hiring process be conducted remotely?

Yes. In fact, considering the potential lead time that many businesses encounter during the course of an in depth hiring process, it may be preferable to begin the process of finding and hiring qualified candidates now, even though they may not begin work for some time. Establish a uniform policy and best practices to ensure that the hiring team are on the same page, and the process runs smoothly. 

Can I hire someone remotely if we need them to be onsite in the future?

Aside from industries that are deemed essential, businesses have been forced to find ways to have their employees work remotely. Managers and executives are attempting to maintain critical functions outside of their traditional spaces through the use of video conferencing, emails, conference calls, and productivity apps. However, many of these companies plan to return to “business as usual” once social distancing requirements are loosened. 

If your business plans to start remotely but transition back to on-site work, you’ll want to ensure that your job description and Employment Contract (or Independent Contractor Agreement) outlines your expectations for the position. 

However, if you are hiring to meet a surge in demand relating to COVID-19, a Temporary Employment Contract may be more appropriate.

Is it unlawful, under the Americans with Disabilities Act (ADA), to ask whether a potential hire has symptoms of COVID-19?

It is unlawful to ask potential employees questions that may reveal information about a disability. However, asking a potential hire about symptoms of a cold or flu is not intended to and likely would not elicit information relating to a disability. Therefore, according to the U.S. Equal Employment Opportunity Commission (EEOC), it is permissible.

Can our business require a medical examination before we make a conditional offer of employment?

No. The ADA prohibits employers from conducting medical examinations of potential applicants before a conditional offer of employment is made. This is because a medical examination may reveal information that leads to discriminatory hiring practices. 

Can we require a medical examination after a conditional offer has been made?

Yes. The ADA permits a medical examination before an individual begins working. Keep in mind, however, that in order to be legally compliant, you must require that all entering employees within the same job category are being subjected to the same kinds of medical examinations. For example, under the current circumstances, it is considered permissible to require that applicants have their temperature taken.

Can we withdraw a job offer for an immediate hire when the applicant has either symptoms or a confirmed diagnosis of COVID-19?

Yes. If an individual displays symptoms of COVID-19, relevant health agency recommendations provide that it is not safe for those individuals to be present at the workplace, therefore the employer may withdraw the job offer. 

Is it ok to require employees to go home if they appear to be sick?

Yes. Due to the nature of community transmission of COVID-19, the CDC recommends isolating and sending home employees who show potential symptoms of the virus.

Am I required to supply masks to all of my employees?

State and local laws may vary, however, in many places the answer is still, no, unless your business falls within the particular parameters of Occupational Safety and Health Administration (OSHA) respiratory protection standard. That said, new laws and temporary measures are being implemented rapidly, so it is best to talk to an attorney

Can I prevent my employees from wearing masks?

It depends. In several states, employees of essential businesses are required by law to wear masks. Even if masks aren’t legally required in public in your state, keep in mind that wearing a mask can help to protect your staff and customers from exposure and it may also provide your employee with a feeling of safety during a time when carriers of COVID-19 aren’t necessarily obvious. Ask a lawyer if you have questions about the laws that apply to your situation.

Are there any other additional practices that our business should be implementing for new hires?

The CDC has made a list of specific practices that all businesses should follow, such as immediately separating and sending home any worker who appears to have symptoms of illness, providing areas for regular handwashing, and other related best practices. 

Due to the changing circumstances relating to COVID-19, businesses are now presented with an opportunity to review and revise all internal documents, workplace policies, and HR documents, in order to ensure that they accurately reflect current operations. If you need help reconfiguring your hiring process or figuring out how to shift your business model in order to accommodate novel legal requirements relating to COVID-19, connect with a lawyer to discuss what policies or procedures might best fit your organization’s goals. As an employer, you can get access to free legal advice and essential documents in the Coronavirus Legal Center for Business

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