The COVID-19 coronavirus pandemic has upended business operations worldwide, with employers facing unprecedented changes in the workplace (e.g., widespread working from home initiatives). COVID-19 has also caused a host of questions and concerns for employers uncertain how the pandemic should change their behaviors. Staffing, for example, has become a complex question. How is COVID-19 affecting recruitment and hiring, and what should employers do in response?
Interviews & Onboarding
Employers should aim to decrease the frequency of in-person interactions. Virtual interviews conducted via teleconferencing services can help. Any interviews that continue to be held in person should reflect appropriate social distancing protocols: no handshakes, keeping individuals six feet apart, etc.
The Equal Employment Opportunity Commission (EEOC) has issued guidance that employers may screen job applicants for symptoms of COVID-19, as long as it applies the screening equally to all prospective/new employees in the same or similar role. This includes medical exams after a conditional job offer has been made.
The EEOC also says that employers can delay the start date of new hires who have COVID-19 or symptoms associated with it. Employers can also withdraw a job offer from individuals who have COVID-19 or related symptoms if they need the applicant to start immediately. Employers may not delay start dates or withdraw a job offer simply because an individual may be at higher risk (over 65 years old, immuno-compromised, etc.).
I-9, Employment Eligibility Verification
U.S. law requires employers “to verify the identity and employment authorization of individuals hired for employment in the United States,” but during the pandemic, document review requirements have been relaxed. Some documents can be inspected remotely, but the employer must review and retain physical copies of the documents. Normal physical inspection will resume at some point.
The pandemic has forced many employers to lay off, furlough, or otherwise terminate workers. Some employees may be rehired as 1099 contractors, or other 1099 contractors may be retained to replace departing employees. This poses some potential compliance complications. Remember the IRS has strict rules about employee classification. When rehiring full-time employees as contractors, if the employer continues to treat them as employees, the employer may run afoul of IRS requirements.
The economic fallout from the pandemic may tempt some employers to slow down their recruitment efforts, but be cautious. The future is very uncertain, and the best way to navigate uncertainty from a staffing perspective is to continue developing a healthy pipeline of new talent. If a large number of employees get sick, they may need to be temporarily replaced. If business picks up suddenly after reopening or after release of a vaccine, employers need to be prepared to staff up quickly.
Some regulatory activities have been temporarily postponed or suspended; for example, the EEOC has delayed data collection activities. However, most labor laws, anti-discrimination regulations, and workplace safety statutes that affect the hiring process remain in effect, and employers should expect these laws to continue to be enforced through and after the pandemic.
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