COVID-19 | 

Hiring During COVID-19: An Employer’s Guide

To adapt to the changing environment created by COVID-19, employers who need to hire new employees right now may need to reevaluate their traditional hiring practices. How you interview, screen and onboard new hires may be different during a pandemic. Here are some answers to frequently asked questions about hiring in the age of COVID-19.

Q: How should I interview applicants while COVID-19 is still impacting the United States?

A: Consider various options to protect interviewers, applicants, and employees from COVID-19 during interviews. For instance, you may want to conduct interviews by phone or video when possible. If you decide to use video interviews as part of your hiring process, it's a best practice to be consistent and conduct video interviews with all candidates selected for an interview. Let candidates know what equipment and system requirements they will need to have in place in advance of the interview and have a backup plan in case not all candidates have access to the necessary equipment. Keep in mind nondiscrimination laws as well. For instance, if your hiring process would disproportionately limit a protected group from having the opportunity to be considered for the position, determine whether there's another effective alternative means, such as a telephone call, to conduct the interview.

Q: What should I do if in-person interviews are necessary?

A: First, make sure in-person interviews are truly necessary. If they are, and where permitted, keep federal, state, and local guidelines and orders in mind. Options may include:

  • Limiting applicants to a certain part of the workplace
  • 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

Q: May I screen applicants for symptoms of COVID-19?

A: Under federal law, an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer (see question C1 from the EEOC's guidance), as long as the employer does so for all entering employees in the same type of job.

Note: There are different rules for screening current employees.

Q: Can I require applicants get tested for COVID-19 before they come in for an interview?

A: Testing for COVID-19 is considered a medical exam and federal law prohibits employers from conducting medical examinations of applicants before making a conditional offer of employment.

Q: Can I take an applicant's temperature?

A: Under federal law, taking an individual's temperature is considered a medical exam. Therefore, an employer may not check an applicant's temperature until after making a conditional job offer (see question C2 from the EEOC's guidance). Note: Some people with COVID-19 don't have a fever. You may want to consider additional screening practices for COVID-19.

Q: If an applicant has COVID-19 symptoms, can I delay their start date?

A: Yes. Currently, CDC guidance states that an individual who has COVID-19 or associated symptoms shouldn't be in the workplace (see question C3 in the EEOC's guidance).

Q: May an employer unilaterally postpone the start date or withdraw a job offer because the individual is high risk (e.g., pregnant or 65 years or older)?

A: No (see question C5 from the EEOC's guidance). However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date, according to the EEOC.

Q: What paperwork do I need to complete for new hires?

A: Various federal, state, and local laws require that employees complete certain paperwork at the time of hire. Here are some of these key forms:

  • Form I-9. An I-9 Form must be completed for each new hire to verify the individual's identity and work authorization.
  • Form W-4. All new hires must complete a W-4 to determine the amount of federal income tax to withhold from their wages.
  • Notice of Coverage Options. Under the Affordable Care Act (ACA), employers must provide a Notice of Coverage Options to all new hires within 14 days of their start date.
  • State and local notices. Many states and local jurisdictions also require that employers provide specific notices to employees at the time of hire.
  • New hire reporting. Federal law requires that employers submit certain information to their state regarding each new hire within 20 days of the employee's start date, but several states have shorter timeframes. New hire reporting is included in many RUN Powered by ADP® packages.

Q: Can employers comply with new hire notice requirements electronically?

A: Employers typically can satisfy many of these requirements by distributing electronic versions of required notices. Note that some notices must be furnished in a certain size and format or in additional languages. Check your applicable laws to ensure compliance.

Q: Has the timeframe for completing the I-9 been extended in light of COVID-19?

A: No, the timeframe for completing the I-9 remains the same. Section 1 of the form must be completed by the end of the employee's first day of work for pay (but it cannot be completed until the employee has been offered, and has accepted, the job). Employers must complete Section 2 within three business days of the employee's start date.

Q: Can an employer complete the I-9 Form remotely? [Updated: 5/20/2020]

A: New hires can complete Section 1 remotely, provided the above timeframe is met. Although employers typically inspect Section 2 documents in the employee's physical presence, in March 2020, the Department of Homeland Security (DHS) announced that employers temporarily will be allowed to inspect these documents remotely in certain situations related to COVID-19. The temporary changes were set to expire on May 19, 2020 and apply only to employers and workplaces that are operating remotely as a result of COVID-19. However, the DHS has extended the temporary changes for another 30 days.

Q: For the I-9, new hires must present unexpired documents. However, our DMV is closed and doesn't process online renewal applications, so no one has been able to renew their driver's licenses. What should I do if a new hire presents an expired driver's license for the I-9?

A: Typically, employees must present unexpired documents for Section 2 of the I-9. However, on May 1, 2020, the DHS issued a temporary policy to address the challenges individuals may experience when renewing a state driver's license, a state ID card, or other List B identity document due to the restrictions put in place for COVID-19. The temporary rule generally permits employers to accept List B documents that expired after March 1, 2020 as long as they follow specific protocol from the DHS.

Q: Instead of just following the DHS's temporary policy for expired List B Documents, can I require the employee to provide a different unexpired document?

A: No. The employee has the right to choose which documents to present, provided they are on the I-9's List of Acceptable Documents.

Q: We have a policy that requires background checks and drug testing for new hires. However, COVID-19 is continuing to cause disruptions to our screening process. Should we consider changing our policy?

A: Employers are advised to consult with experienced counsel before deviating from normal hiring and other employment policies and practices. There may be industry-specific laws and regulations to consider, along with safety standards, that affect your employees and customers.

Q: We're required to conduct drug testing for new hires in safety-sensitive positions under Department of Transportation regulations. COVID-19 is preventing us from doing so right now. Can we allow a new hire to work now and conduct the drug test later?

A: If you're unable to conduct pre-employment drug testing in accordance with DOT rules, you're generally prohibited from allowing a prospective employee to perform safety-sensitive functions until you receive a negative pre-employment test result.

Note: Employers in other regulated industries should check with the relevant state and/or federal enforcement agency for the status of drug testing rules and consult legal counsel before deviating from normal policies and practices.

Q: Will new hires be entitled to leave under the Families First Coronavirus Response Act (FFCRA) immediately or can I require them to wait?

A: The FFCRA allows employees to take two types of leave: Emergency Paid Sick Leave (EPSL) and Public Health Emergency Leave (PHEL)/Expanded FMLA. All employees are entitled to use EPSL, regardless of their length of service. To be eligible for PHEL/Expanded FMLA, though, an employee must be employed with the employer for at least 30 calendar days prior to the leave. Note: New hires may also be entitled to leave under state and/or local rules.

Conclusion:

As the economy begins to restart in certain locations and consumer spending habits change, some employers may need to bolster their workforce. Evaluate your hiring practices to adapt to this new environment and comply with applicable federal, state, and local laws and regulations.

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