Type: Law Bulletins
Date: 06/23/2020

Continuing Ordinary Tasks in Extraordinary Times: Considerations for Hiring and Terminating Employees During the Pandemic

Employers have been faced with a myriad of new policies and responsibilities during the COVID-19 pandemic. In addition to tasks that are new as a result of the pandemic, employers still must carry on and perform the ordinary human resources tasks—such as hiring and terminating employees. The current guidelines for conducting business with minimal in-person interaction adds new complications for sensitive tasks that are not typically handled over the phone. In light of those guidelines, below are some considerations and best practices to keep in mind while hiring new employees and terminating employees.

Hiring Employees

With unemployment rates at record highs, there are many individuals eager to find and apply for new employment opportunities. In addition, businesses that are entering the various phases of reopening are equally eager to staff operations and get back to “normal.” While employers are ready to dive into hiring new employees, it is important to create and implement a plan for the application, interview, and hiring process. Here are several points to consider when evaluating your plan of action:

  • Implement a web-based application process. This will allow potential applicants to avoid having to print off or pick up application materials, and will also facilitate a more efficient application process.
  • Conduct virtual interviews. Provide adequate information to the candidates about the equipment and system requirements they will need to have in place prior to the interview so that they have the ability to test access to the platform. The platform for the interview (i.e., Zoom, WebEx, or similar platform) should be secure and require a passcode to enter so that unwanted guests cannot log on during the interview. Recording video interviews may be helpful in that it allows the members of an employer’s hiring team to review the interview at their convenience — just keep in mind that the laws regulating the recording of video interviews vary by state and may require the employer to receive consent from the interviewee prior to recording.
  • If an applicant must be interviewed in person, take the appropriate safety measures, including:
    • Require candidates to self-assess their health and check their temperature prior to reporting to the company for the interview. Employers cannot perform temperature checks on applicants.
    • Limit candidates to a certain part or room of the workplace that is well ventilated.
    • Sanitize the interview space in between interviews.
    • Consider requiring candidates and interviewers to wear face coverings.
    • Refrain from hand shaking.
    • Practice social distancing inside the interview room and at all other times during the interview.
    • Request that candidates reschedule if they are experiencing symptoms of COVID-19.
  • Decide whether to test applicants for COVID-19. The EEOC’s pandemic guidance allows employers to test applicants for COVID-19 after making a conditional offer of employment, so long as the employer tests all entering employees in the same type of job. Some employers have chosen to test new hires immediately prior to their first day of on-site work. If this is done, and the new employee is unable to telework, the employer may delay the start date of an applicant who tests positive for COVID-19 or has symptoms of COVID-19. Any and all records of medical testing should be kept in a confidential medical record file.
  • Be cautious when choosing not to hire someone who refuses to work onsite. There is no requirement to accommodate a general fear or nervousness about contracting COVID-19, but employers should engage in the interactive process if an applicant requests a medical-related accommodation or discloses that he or she has an underlying health condition that may place him or her at a higher risk of severe illness. However, employers may not unilaterally postpone the start date or withdraw a job offer because the individual is part of the higher risk or vulnerable population (as defined by CDC guidance), and employers should not ask applicants if they are part of the higher risk or vulnerable population.
  • Conduct virtual onboarding and training. To the extent possible, employers should allow new hires to review and sign onboarding paperwork electronically and should conduct workplace and job-specific training virtually. It may also be a good idea to streamline onboarding so that it is standardized and able to be repeated regularly. Consider pre-recording onboarding (rather than a “real-time” videoconference) and provide new hires with contact information for the individuals within the company to whom they should direct any questions.

Terminating Employees

Now more than ever, businesses are being forced to make tough decisions and deciding to terminate or lay off employees is one of those decisions. Whether the termination is the result of business needs, for cause based on performance or other cause-related factors, or for any other reason, here are several considerations for the termination process in today’s climate:

  • Be sensitive to an employee’s situation. The news of being unemployed is almost always bad news; however, today, terminating someone’s employment can put him or her in a particularly difficult situation. While the employer should not feel guilty about a termination decision, you may want to consider offering a small severance or to act as a reference for future job opportunities. This may depend upon the basis for the termination and whether the employee is being terminated for cause, as opposed to business needs outside the employee’s control.
  • Document the reason for termination. Generally, at-will employers can terminate their employees with or without cause at any time. To avoid potential discrimination and wrongful termination claims, however, make certain that the employee is being terminated for a legitimate, non-discriminatory business reason or progression of discipline (such as performance, attendance, or violation of company policy) that would normally result in termination. Be sure to document the events leading up to and resulting in termination, and keep that documentation in the employee’s file. Remember that this documentation will most likely be discoverable in any subsequent employee legal action.
  • Consider conducting termination meetings virtually. If the employer traditionally conducts these meetings in person, a video meeting will still allow for a “face-to-face” conversation rather than being more impersonal over the phone. Due to the sensitive nature of the conversation, be sure that the video platform is secure and that it can be accessed only with a passcode. Employers should conduct the meeting in the same manner as it would normally be conducted pre-pandemic. Inform the employee that you will be sending him or her post-termination paperwork, as applicable, such as severance documents, health insurance instructions, and information related to unemployment benefits.
  • Do not forget to provide information regarding unemployment. Many states require employers to provide certain information regarding unemployment benefits to employees at the time they separate from their employment, and some states recently implemented such requirements in light of the pandemic. Be familiar with the rules and regulations in the applicable state prior to terminating employees.
  • Collect any company-owned equipment and terminate access to company servers and email. During the termination meeting, explain to the employee that he or she needs to return any company-owned documents, data, and equipment, and that his or her access to company servers will be terminated at a given time. The employer should consider paying for the shipping of equipment back to the company or providing courier service to retrieve the equipment from the employee. In addition, communicate with your IT department so that the necessary personnel know about the termination and know when to terminate access to company servers and information.
  • Communicate with the workplace. Send an email to other employees with whom the terminated employee worked. This message should not provide specific information about the reason for termination, but should rather be a general message notifying the workplace that the individual is no longer employed at the company. If the terminated employee was in management or held a supervisory role, inform his or her subordinates who their new supervisor or direct report will be.

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