Legal Implications of Recruiting During The New Normal

Written by: Lisa A. Burke
Published On: Jun 8, 2020
Category:

doc wearing mask

Recruiters face a myriad of issues as they try to navigate the complexities of hiring during the COVID-19 outbreak. While a number of companies have paused operations and suspended hiring, those organizations needing to fill critical roles will need to move forward with the hiring process and implement new methods to recruit and onboard talent that comply with legal and safety standards.  

Key Considerations

Can you require testing? Quarantine? Remote based work? Can you retract an offer to a candidate that refuses to work onsite? Below is guidance from legal experts on each of these issues. 

Consideration #1 - Onsite vs. Virtual Interviews

Most legal experts agree that bringing candidates onsite to interview is not a good strategy during the pandemic. The better method is to conduct virtual interviews using one of the many tools now available, such as Skype, Zoom or the newly implemented Google Meet. It will be important for recruiters to provide clear instructions to candidates for logging in well ahead of the interview appointment date. Candidates should be advised to test their video and audio quality to ensure both are functioning properly.

As per an article in JDSupra by the law firm Epstein Becker and Green, one important legal consideration is if the video interview is being recorded for reference by others on the hiring team, recruiters will need to disclose this to candidates and obtain their consent before the appointment. This same legal rule applies to phone interviews. At the start of the call, recruiters need to disclose if the conversation will be recorded and ask the candidate for their consent before continuing.  In August 2019 Illinois enacted the Artificial Intelligence Video Interview Act (AIVI Act) which stipulates pre-disclosure but also that the video interviews only be shared with those directly involved with the hiring decision for any given role. It would be advisable to consult an attorney in your state before implementing a video recruiting process.

Requiring onsite interviews introduces safety issues, to both staff and candidates. If your organization requires onsite interviews, ensure that all safety precautions are put into place in terms of wearing masks, keeping social distance and using disinfectant to thoroughly clean the area after each meeting. 

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Consideration #2 - Testing Candidates for Coronavirus

An article published by the Pillsbury Law Firm, states that the EEOC (Equal Employment Opportunity Commission) permits employers to test candidates as part of the onboarding process only after a conditional offer of employment has been extended and that testing is administered to all new hires for similar roles.

Other EEOC guidance includes:

  • Employers can delay the start date of new hires to have tested positive for the virus.
  • Employers may rescind job offers of candidates who test positive for coronavirus if the role requires an immediate start. 
  • Employers can mandate new hires to work remotely, and may decline to extend a job offer to those candidates who decline to work either remotely or onsite.
  • The EEOC also advises caution rescinding offers when candidates test positive but have mild symptoms, similar to a bad cold, as they are not considered to have a disability under the American with Disabilities Act (ADA). The EEOC also advises that employers be aware that any medical testing, including taking of candidate temperature, is considered a medical exam and thus considered confidential medical information and protected under HIPAA regulations. 

Consideration #3 - Mandating Remote Work

Employers can require that employees work remotely as they have an obligation to protect the health and safety of everyone in the organization. If an organization has legitimate concerns about a new employee's possible exposure (e.g. recent travel to highly affected areas), they can require that person to work remotely for a certain time period or postpone the start date. However, all policies need to be applied consistently across all groups to avoid potential litigation post-pandemic.

Employers may also require employees returning to work onsite to submit medical documentation that certifies their negative status, as per EEOC and ADA guidelines.

There could be complications to this mandate:

  • Candidates and employees can refuse to work onsite if they are employed but a company deemed nonessential by federal, state or local orders and, thereby, ordered to  cease operations.
  • Employees can refuse to work onsite if there are legitimate health and/or safety concerns.
  • As per the ADA, a request to work remotely can be considered a request for reasonable accommodation and expose the employer to possible litigation if they refuse to permit this work arrangement.  

Consideration #4 - Refusing to Hire a Candidate Who Objects To working Onsite or Remote

While employers should be able to refuse a hire to such candidates, each decision needs to be reached on an individual basis while ensuring hiring consistency across similar roles. While employers need not provide accommodation for those candidates who have generalized anxiety about the virus, they need to evaluate the appropriateness of reasonable accommodation if the candidates discloses an underlying medical condition that renders them susceptible to infection.

Conclusions

In conclusion, the overall legal risk in hiring/onboarding a candidate during the pandemic is fairly low but organizations can reduce the risk even further by following these steps:

  1. Conduct most interviews virtually. It is natural that candidates will want to meet the team but even that can be carried out virtually with virtual tools. You can also provide virtual tours of the workplace. 
  2. For those roles that will need to be onsite, focus sourcing efforts on local/regional talent (within a 4 hours drive is optimal) to reduce the need for extensive candidate travel. While this local focus may reduce the number of viable candidates, you can introduce a competency based recruitment model to include skills-based and behavioral/personality testing and situational assessments combined with a structured interview process to evaluate candidates fit. It’s advised to conduct the earlier part of the hiring process virtually and only invite top candidates to onsite meetings to reduce exposure.
  3. Consider how your organization’s brand and messaging is reflected throughout the hiring process. Implementing a fair and positive candidate experience that strives for engagement and communication will foster candidate interest and position your organization favorably. How your organization manages the process will highlight your organization culture and translate into a significant brand advantage.  

These are certainly unprecedented times and routine hiring practices will need to change in favor of new methods that minimize exposure and risk to COVID-19. Under the new normal, recruiting practices will need to remain flexible and open to new methods. Perhaps the processes your organization implements now will be retained when the situation improves. Hardship has been known to foster improvement! 

 

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