The coronavirus (COVID-19) has proven to be a global threat, not only to the public at large, but also to the economy and businesses. As we continue to navigate these uncharted waters, it is imperative for employers to implement safety protocols to prevent the spread of the virus among employees, while ensuring employees’ rights are not being violated.
In March 2020, the Equal Opportunity Commission (EEOC) issued an advisory opinion offering guidance on the responsibility of employers amidst the COVID-19 pandemic. The opinion is an update to the statement published in 2009 during the H1N1 (“swine flu”) outbreak and retains the provisions implementing a temporary waiver of select sections of the Americans with Disabilities Act (ADA) that would otherwise prohibit an employer from questioning employees about their health. In doing so, the EEOC provides employers have more flexibility in conducting medical examinations and screenings in the workplace if the employer has “a reasonable belief the employee poses a direct threat to the health or safety” of others and the workplace, or if doing so is “consistent with a business necessity.”
Relying on the Centers for Disease Control and Prevention (CDC), the EEOC cites examples where it may be appropriate for an employer to conduct medical screenings on employees to ensure the health and safety of others in the workplace. Some examples include: 1) asking employees who are ill at work or who call in sick if they are experiencing symptoms of fever, chills, dry cough, shortness of breath, or sore throat; 2) requesting information from employees who return from travel about the locations they visited and any symptoms they may be experiencing resulting from such travel; 3) taking employees’ temperatures to determine if they have a fever; and 4) conducting screenings if the employee is known to have been exposed to a person who is a confirmed carrier of COVID-19. Employees exhibiting flu-like symptoms should immediately be sent home and not permitted to return to work until they have met the criteria to discontinue home isolation as set forth in the guidelines issued by the CDC.
Despite more lenient restrictions, employers must be careful not to violate their employees’ rights under any state, federal, or local laws when implementing new protocols designed to prevent the spread of COVID-19. Any information received by an employer as a result of these screenings must remain confidential to the extent possible. In the event an employee is confirmed to have COVID-19, employers should inform other employees about their potential exposure, but, to the extent possible, must keep the identity of the employee confidential. Additionally, employers should avoid taking adverse employment actions (termination, demotions, etc.) against employees who are sent home or are otherwise absent from work as a result of COVID-19. The sole purpose of the CDC guidelines is to ensure the health and safety of your workforce and business, rather than punish employees who become infected with COVID-19.
Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation