Screening for Applicants’ COVID-19 Concerns: Can You? Should You?

Employers may decline to hire candidates who refuse to work onsite

By Lin Grensing-Pophal July 9, 2020

​HR professionals know that the interviewing process can be time-consuming and costly, and there's always the risk that a candidate will accept an offer elsewhere. But 2020 brings a new concern and potential risk—that fear of COVID-19 will cause candidates to back out of the process even after an offer has been made.

There has been plenty of news coverage surrounding what employers can and shouldn't do about screening job applicants for physical symptoms related to COVID-19. But what about screening them for their attitude about entering a new workplace during the ongoing pandemic? At what point in the hiring process should it be explored, if at all?

Employers can take steps to minimize the risk that concerns about COVID-19 will cause candidates to remove themselves from consideration after a job offer is made. The first step is transparency. Communication—from the outset—can help to minimize, if not eliminate, the potential for surprises late in the hiring process.

[SHRM members-only toolkit: Interviewing Candidates for Employment]

Strive for Transparent Hiring

"It's important throughout the hiring process that both the candidate's expectations and those of the employer be effectively communicated," said Wendi Fairchild, a senior executive recruiter at LandrumHR, an HR consulting and outsourcing firm based in Pensacola, Fla.

"A solid job description stating job duties and responsibilities—as well as workdays and hours, and work location—is essential," she said. That includes being upfront about whether the position requires working from home or offers the flexibility to work from home during the pandemic and over what period of time.

Transparency should work both ways. "Given COVID-19's status as a global pandemic, it is entirely appropriate for employers to inquire with applicants about their attitudes toward COVID-19," said Michael Elkins, a partner and founder of MLE Law, a labor and employment business law firm in Fort Lauderdale, Fla. "They should just make sure they're inquiring for all applicants."

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Respond to Requests for Special Considerations

Regardless of how openly, honestly and transparently you communicated throughout the recruitment and interview process, though, there is always a possibility that a candidate will have second thoughts once an offer is made and the reality of reporting to work looms. In addition, the situation with the virus is fluid, and much can change from the time of the initial interview to the job offer.

If you find yourself faced with a request from a new hire to work remotely, there are several things to consider, according to Fairchild:

  • Are there any Americans with Disabilities Act (ADA) requirements that the candidate shared during the interview process that would prohibit them from entering the workplace?
  • What kinds of measures has the organization implemented to assure the new employee that the necessary precautions are in place to promote a safe environment (e.g., daily screenings, social distancing, sanitizing of workspaces, etc.)?
  • Can you be flexible with this position? Could there be a trial period during which the employee starts remotely and then slowly acclimates into the workplace?
  • Since the candidate interviewed, has his or her situation changed in such a way that he or she could have originally reported to a worksite location but now needs to work from home, perhaps because of child care obligations?

Often, accommodations can be made. But if they can't, and the position absolutely requires the employee to be onsite, employers still have some options.

When It Just Won't Work

Whether for logistical reasons—the work simply can't be done remotely—or to ensure internal consistency, employers do have the right to decide not to hire a candidate who isn't able to perform the job as required.

"Employers may decline to hire applicants who refuse to work at the company's designated work location, whether that be onsite or remotely," Elkins said.

Fairchild agrees. "As long as there are no ADA requirements to be met, the candidate was provided with a written job description that included work hours and location, and expectations were fully communicated during the interview process that the job would be onsite, the employer can advise the candidate that remote work is not an option for the position," she said. "If the candidate refuses to report to the worksite location, the employer can rescind the job offer."

If ADA requirements apply, it's important for employers to know their obligations under the law, noted Eileen Oakes Muskett, partner at the law firm Fox Rothschild in Atlantic City, N.J. An employer that extends an offer of employment and then learns the applicant is not ready to report to the work environment and would rather work from home faces several risks, she said. These include potential liability for disability discrimination for failure to hire and the need to engage in the interactive process to determine if the new employee can be provided with an accommodation.

"Employers may be liable for a discriminatory failure to hire if the decision is motivated by the candidate's disability, which can include mental illness or other conditions [that] may prevent the employee from working at the company's facility," Muskett said. "The interactive process requires employers to engage in an interactive and constructive dialogue with the employee to determine if the concerns they have about entering the work environment can be alleviated and the options for doing so."

Lin Grensing-Pophal is a freelance writer in Chippewa Falls, Wis.



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