COVID-19: Q&A Specific to Staffing

By Seyfarth

Pre-Hire and Hiring

1. If a candidate comes into an office to fill out an application and they are clearly sick, can a staffing firm tell the worker to leave the premises and come back later?

Yes. A staffing firm may prohibit access to applicants exhibiting symptoms of COVID-19.

2. If internal staff is working remotely, can temporary workers’ Form I-9 employment verification documents be viewed remotely by Skype, FaceTime, etc.?

Yes. See this update from the Department of Homeland Security.

3. May a staffing firm or client use a prescreening questionnaire before letting employees/visitors/applicants into the workplace?

Yes. It is permissible to ask these groups of visitors screening questions about symptoms, travel, and exposures that reflect risk of potential exposure to COVID-19.

4. What COVID-19 questions are staffing firms permitted to ask of candidates and new employees? For example, can a staffing firm ask

a. whether a candidate has traveled to specific, high-risk areas?

Yes. No law prohibits inquiries into travel to specific areas.

b. whether a candidate had a recent fever and/or other specific symptoms?

Yes. Medical inquiries are permissible as to COVID-19 symptoms, including fever, coughing, and shortness of breath.

c. whether a candidate tested positive for the virus?

Yes. At this point, inquiries about COVID-19 test results are permissible.

d. whether a candidate lives with, or has recently been around, someone who tested positive or is presently quarantined?

Yes. No law prohibits inquiries into whether an individual lives with, or has recently been around, someone who tested positive or is presently quarantined.

e. Can a staffing firm refuse to place a worker who answers yes to any of these questions?

Yes. Answering yes to any of these questions is a valid basis for temporarily denying access to the facility or refusing to place a worker on assignment. However, the staffing firm should emphasize the temporary nature of the denial and that it does not preclude the worker from seeking opportunities later.

f. Can a staffing firm require the candidate to sign an affidavit or other statement attesting to the answers?

Yes. These inquiries are permissible and they can be in writing. To the extent the answers contain specific health information regarding symptoms or diagnoses, they must be maintained confidentially.

5. Can a staffing firm refuse to accept clients/job reqs if they are in specific geographic areas or involve large gatherings of more than 500 people?

Yes. There is no prohibition against deciding to decline a business opportunity due to a potential health risk to your workers. However, to the extent the client relationship is memorialized in a contract/staffing services agreement, that document should be reviewed before declining the opportunity, to make certain doing so does not violate the terms of the contract.

6. Can a staffing firm ban workers from traveling either domestically or internationally—either for work or personal travel?

A staffing firm may restrict business travel as it chooses. While a staffing firm may not prohibit workers from traveling to certain destinations for personal travel, it may require those workers to self-quarantine for 14 days upon return. Staffing firms should advise workers contemplating travel of this possibility.

While on Assignment

1. Can a staffing firm ask a client whether it has had a recent case of the virus, and whether a temporary worker is being requested to fill in for a sick worker?

Yes. Staffing firms can and should make inquiries to determine whether they are sending their workers to a safe and healthful work environment. The potential for exposure to COVID-19 is an inquiry that staffing firms should make before assigning a worker to a client site. In addition, inquiries into the client’s protocols for preventing spread of COVID-19 in its workplace are appropriate.

2. Can a staffing firm mandate a 14-day quarantine for workers

a. if they demonstrate symptoms of the virus? What if the worker claims that “it’s allergies”?

Yes. A staffing firm may require an employee demonstrating symptoms of COVID-19 to stay at home if the employee exhibits symptoms associated with the disease. Whether the staffing firm may impose a 14-day duration on self-quarantine or instruct the worker to stay home until symptom-free for 24 hours will depend on the circumstances.

b. if they’ve recently traveled to particular areas where the virus is widespread?

Yes. A staffing firm may require a quarantine following travel to areas with sustained spread of the virus as reflected on the CDC website.

c. if they’ve returned from a cruise?

Yes. A staffing firm may require a worker to self-quarantine following cruise travel. This is consistent with CDC guidance.

d. if they’ve traveled at all?

Yes. A staffing firm may require a worker to self-quarantine following travel, although that precaution is not among those recommended by the CDC.

3. Can a staffing firm require temporary employees to seek medical attention and/or a COVID-19 test if it believes the employees are showing virus symptoms? Can temporary employees be terminated or dismissed from future assignments if they fail to do so?

No. Employers cannot force employees to seek medical attention or obtain a COVID-19 test, although they can encourage them to do so. They can, however, require employees to demonstrate fitness for duty as a condition of returning to work.

4. If a client sends a worker home simply because the client believes the worker has been exposed through a family member or travel, what obligations does the staffing firm have toward that worker? Can the worker be reassigned to a different client?

The staffing firm should make its own inquiry to determine if circumstances suggest a potential exposure. If the worker was exposed to an infected person or if the worker traveled to a location identified by the CDC as having sustained spread, it is advisable to have the employee self-quarantine for 14 days and return with a doctor’s note. However, a doctor’s note or other documentation demonstrating fitness for duty may not always be feasible. Those situations should be addressed on a case-by-case basis.

5. If a worker is sent home to quarantine, can staffing firms require a medical release or doctor’s note before permitting the worker to return to work?

Yes. However, obtaining a note may be difficult due to an overwhelmed health care system during the crisis. Accordingly, some flexibility may be necessary.

6. If an employee is out of work due to an undisclosed illness, can the staffing firm require testing, medical release, or a doctor’s note stating the illness was not COVID-19-related before permitting the worker to return to work?

A staffing firm can require employees to obtain a doctor’s note before permitting them to return to work.

7. Is a staffing firm required to cover any costs associated with testing?

No. But testing may be covered under insurance policies or the recently enacted Families First Act.

8. Can a staffing firm refuse to place, or client refuse to accept, an employee that has one or some symptoms of the virus?

Yes. A staffing firm or its client may send a worker home if he or she exhibits symptoms of COVID-19.

9. Can a staffing firm ask employees about a specific diagnosis or just their symptoms?

Yes. In the context of the COVID-19 pandemic, such inquiries are permissible. Any information about an employee’s diagnosis must be kept confidential. Also, while the inquiry may be permissible currently, it is because of the current public health emergency. This is not an inquiry staffing firms should ordinarily make.

10. If a worker contracts the COVID-19 virus while on assignment, does the staffing firm or client have a duty to place a worker back on assignment after