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The ADA and the Hiring Process During the Pandemic (2020)

The ADA and the Hiring Process During the Pandemic (2020)

Posted on October 15, 2020

Originally published in October 2020, as part of a "Tips" webinar

This article has not been updated for current law since the date of its posting on the website. This article is not intended to provide any legal advice. Please seek advice of your professional council.

Any U.S. federal and state tax advice contained in this communication is not intended or written by the Knox Law Firm to be used, and cannot be used by you, for the purpose of: (i) avoiding penalties under the Internal Revenue Code that may be imposed upon you, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

The Americans with Disabilities Act (ADA) restricts when and how much medical information an employer may obtain from any applicant or employee. Prior to making a conditional job offer to an applicant, disability-related inquiries and medical examinations are generally prohibited. They are permitted; however, between the time of the offer and when the applicant begins work, provided they are required for everyone in the same job category. For example:

An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This rule applies whether or not the applicant has a disability.
Any medical exams are permitted after an employer has made a conditional offer of employment. Accordingly, an applicant’s temperature as part of a post-offer, pre-employment medical examination is permissible. Note, however, that some people with COVID-19 do not have a fever.

Delaying the start date of an applicant

According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. Note, however, the fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing their start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone their start date.

Based on current CDC guidance, an employer may withdraw a job offer when it needs an applicant to start immediately, but the individual has COVID-19 or symptoms of it.

Author: Mark T. Wassell

Originally published in October 2020, as part of a "Tips" webinar