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COVID19 and the EEOC Guidance


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April 14, 2020 Return to News & Events

COVID19 and the EEOC Guidance

Recently the Equal Employment Opportunity Commission 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.

Adam Almeida, President and CEO of CriminalBackgroundRecords.com, states: “Any time 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, such as CriminalBackgroundRecords.com, in order to remain compliant with law.

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 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. (1)

More importantly 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 the 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. (2)

Regarding new hires the rules have not really changed. All new hires must be treated fairly and equally throughout the vetting and hiring process, and must follow all 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.

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. (3)

Almeida concludes: “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.

CriminalBackgroundRecords.com is a third-party employment screening company, an advocate of SHRM, a member in good standing with the PBSA (Professional Background Screening Association) and for over 17 years has maintained an A+ Rating with the BBB (Better Business Bureau). The company has highly trained operators well versed in the needs and requirements of companies and organizations large and small utilizing public records, such as criminal background records, as part of a hiring process. Assisting companies in maintaining full compliance under the law is a central tenet of all client relationships with CriminalBackgroundRecords.com.

Notes:

(1) akingump.com/en/news-insights/eeoc-issues-updated-guidance-on-covid-19-and-federal-disability-discrimination-laws.html

(2) https://www.hklaw.com/en/insights/publications/2020/03/eeoc-updates-published-guidance-for-covid-19-pandemic-preparedness

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