Interviews are critical for finding the right fit for a job, but they must be conducted within the bounds of federal, state, and local laws. While employers may need to adopt different approaches to interviewing as a result of the COVID-19 pandemic, they still must avoid questions that may directly or indirectly reveal an applicant is a member of a protected group. Here are several examples of questions to avoid during an interview, along with some suggested alternatives if applicable.
Avoid #1: Do you have a fever or any other symptoms of COVID-19? Have you had COVID-19?
The Americans with Disabilities Act (ADA) and similar state laws generally require employers to wait until after they extend a conditional job offer to screen applicants for COVID-19 or other medical conditions.
Alternative: Wait until after offering a job before asking whether the prospective employee has been exposed to COVID-19. For the interview itself, consider phone interviews and/or video interviews when possible. If in-person interviews are necessary, employers should take steps to protect applicants and interviewers from COVID-19, such as:
- Limiting applicants to a designated, separate part of the workplace with proper ventilation
- Sanitizing the interview space before and after interviews
- Requiring applicants and interviewers to wear face coverings and other protective equipment
- Asking candidates to reschedule if they're feeling sick
- Mandating that interviewers and candidates remain at least six feet apart and avoid hand shaking
- Setting up see-through partitions to separate interviewers and applicants
Avoid #2: Do you have an underlying health condition that may put you at a higher risk if you contract COVID-19?
The ADA and similar state laws generally prohibit employers from asking questions during interviews that are likely to reveal the existence of a disability.
Alternative: Under limited circumstances, the ADA allows employers to engage in a dialogue regarding whether a qualified candidate would need a reasonable accommodation to perform the essential functions of the job. For more information, see Question #15 from guidance issued by Equal Employment Opportunity Commission (EEOC).
Avoid #3: Are you pregnant? Who's responsible for your children's care? Would you need to take leave if your children's school is closed because of COVID-19?
Federal law and many state laws prohibit employers from discriminating against individuals because of pregnancy. Some states also expressly prohibit employers from discriminating against applicants because of their marital and/or family status. Asking these types of questions may also have a disproportionate impact on female applicants. Laws granting employees leave for caregiving purposes may also provide protections. Avoid interview questions about an applicant's pregnancy, intentions regarding pregnancy, caregiver responsibilities, or family and marital status.
Alternative: During the interview, explain expectations related to work hours, overtime, and travel and ask the applicant whether they can meet those requirements. Be consistent and ask these questions of all applicants (not just female applicants).
Avoid #5: With your previous employer, did you take any paid sick leave?
Under the Families First Coronavirus Response Act (FFCRA), employers are prohibited from discharging, disciplining, or discriminating against any employee because they took paid sick leave. Additionally, many state and local leave laws have protections for employees who use paid sick leave. Asking questions about sick leave may also reveal the existence of a disability.
Alternative: Under the FFCRA, any one individual employee is limited to a maximum of two weeks (80 hours) of paid sick leave. Once an employee takes the maximum 80 hours of paid sick leave, they aren't entitled to additional FFCRA paid sick leave from a subsequent employer. If an employee leaves their employer before taking 80 hours of paid sick leave, then their new employer (if covered by FFCRA) must provide paid sick, when applicable, until the employee has taken a total of 80 hours. Given the anti-retaliation provisions, employers should wait until after they have hired an individual and that individual has requested leave to determine how much paid sick time they are entitled to use.
Avoid #6: The CDC says older individuals are at a higher risk of COVID-19 …are you over the age of 40?
Under federal law, employers are prohibited from discriminating against applicants and employees who are age 40 and older. Many states also prohibit age discrimination, some protecting even younger workers.
Alternative: If there are minimum age requirements for a job in order to comply with a law or for insurance purposes, you may ask whether the applicant meets those requirements. In addition, employers may not bar workers from the workplace because of a potential increased risk of exposure. However, an employer may choose to offer the option of telework or other accommodations to workers who may have a need for such accommodations.
Avoid #7: Because of COVID-19, we are implementing alternative shifts. Do you have any religious obligations that would prevent you from working weekends?
Employers are prohibited from discriminating against individuals on the basis of religion. This includes religious beliefs (both traditional as well as non-traditional) and religious practices, such as attending religious services, praying, or wearing religious garb. Generally, you should avoid questions that elicit information about religious beliefs and practices.
Alternative: If you want to confirm an applicant is able to work the hours required for the job, state the regular days, hours, or shifts for the job and ask whether the candidate can work such a schedule. Keep in mind that you may be required to reasonably accommodate an employee's religious beliefs or practices, such as allowing an employee to voluntarily swap shifts with a co-worker so that they can attend religious services.
Make sure your interview questions are limited to inquiries that only reveal lawful, job-related information. If an applicant voluntarily offers information about their protected status, redirect the interview to elicit job-related information that can help assess whether they're qualified for the job. This may include engaging in a dialogue about a reasonable accommodation, if applicable. Do not use information that's not job-related when making employment decisions. Train supervisors and others who conduct interviews to ask questions in accordance with the law and company policy.