In fact, the EEOC’s pandemic preparedness guidance goes so far as to make lawful the withdrawal of a job offer if it needs an applicant to start immediately but the individual has COVID-19 or symptoms of it, since that individual cannot safely return to the workplace.
However, an employer cannot rescind a job offer merely because a post-offer medical exam reveals that the applicant has a medical condition that puts the individual at increased risk of complications from COVID-19.
The EEOC notes the exception would be if an individual’s medical condition poses a direct threat within the meaning of the ADA.
The direct threat determination must be based on reasonable medical judgment relying upon the most current medical knowledge and/or best available evidence, such as objective information from the CDC or state or local health authorities. The assessment must be individualized, considering the imminence of the risk, severity of the harm and availability of reasonable accommodations to reduce the risk.
As the EEOC notes, “Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat.”
None of these questions about medical conditions should be asked of an applicant prior to a conditional job offer.