EEOC: Workplace Compliance Measures in Fighting COVID-19

As stay-at-home orders are lifted and employees return to the workplace, employers are scrambling to find — not just personal protection equipment — but information on what other measures they can take to prevent transmission of the coronavirus without running afoul of compliance laws. The United States Equal Employment Opportunity Commission has issued several guidances that provide information on what employers are allowed to do.

Employers can:

1. Ask employees about COVID-19 symptoms when employees call in sick
2. Ask employees to show proof of a negative COVID-19 test before returning to work or obtain a doctor’s note
3. Take employees’ temperatures while at work
4. Perform COVID-19 testing at work

As for job applicants, employers can:

1. Screen applicants for symptoms of COVID-19 after making a conditional job offer. They must do so for all the job applicants for the same type of job
2. Take a job applicant’s temperature after making a conditional job offer. They must do so for all prospective employees for the same type of job
3. Delay the start date for a job applicant who has COVID-19 or symptoms. The Centers for Disease Control and Prevention guidance says those individuals should not be in the workplace
4. Withdraw an offer when it needs an applicant to start work immediately and the individual has COVID-19 or symptoms

Asking about COVID-19 symptoms

Employers who are covered by the Americans with Disabilities Act can ask employees who call in sick if they are experiencing symptoms of COVID-19 — in order to protect the rest of its workforce during a pandemic, the Commission says.

The ADA:

• Covers employers with 15 or more employees, including state and local governments. Under the ADA, employers can’t discriminate against qualified individuals with disabilities in employment, including job applicants and employees
• Regulates employers’ disability-related inquiries and places restrictions on employers when it comes to medical exams, requiring that the exams must be “job-related and consistent with business necessity”

In addition, organizations are currently permitted to ask employees physically entering the workplace if they have COVID-19, symptoms associated with COVID-19, or if they have been tested for COVID-19.

Organizations are currently permitted to ask employees physically entering the workplace if they have COVID-19, symptoms associated with COVID-19, or if they have been tested for COVID-19.

Require a doctor’s note before returning to work

Employers can require under the ADA that employees provide a doctor’s note before returning to work because such inquiries:

1. Do not relate to disability

2. Would be justified under the ADA standards for disability-related inquiries of employees if the pandemic is severe

On a practical note, the Commission observes that healthcare professionals may be too busy during a pandemic to provide documentation of an employee’s fitness for duty. Therefore they say a form or email certification stating verification from a local clinic could be enough.

Proof of passing a COVID-19 test before returning to work

Employers can require that employees show proof of a negative COVID-19 test before returning to work.

Temperature tests at work

Many employers have started screening employees’ temperatures to detect for signs of COVID-19. The EEOC has stated that employee temperature checks during the coronavirus pandemic are allowed even though it is a medical exam.

Employers may want to use the 100.4-degree temperature threshold suggested by the CDC. They have the option to turn away workers whose temperature is over that limit.

Several state and local governments and agencies have set their own, more restrictive thresholds for what constitutes a fever.

However, employers should make sure that state and local guidelines regarding temperature levels are consulted, law firm Foley & Lardner says in a blog post. Several state and local governments and agencies have set their own, more restrictive thresholds for what constitutes a fever. For example, a fever is 100.4 in Ohio but 99.5 in Delaware, according to a story in the Washington Post.

The law firm also suggests that employers “discreetly notify the employee that he or she has a fever and do not allow him or her to enter the work environment. The employee should begin quarantine procedures, and should not return to work for 14 days, and only if by that point, the employee has been fever-free for three (3) days and is otherwise symptom-free as well.”

Compensation for time spent in temperature checks

Should employees receive compensation for their time waiting in line and getting a temperature check? This issue is likely to be a contentious one in the coming months, the law firm notes.

“To the extent that any legal authority requires a temperature test before an employee is allowed to work, it is likely that time spent undertaking such a test will be compensable. However, even if such a test is not required, both good employee relations and state law requirements may counsel in favor of paying employees for this time,” Foley & Lardner says in the blog post.

Confidential information

The ADA requires that employers keep medical information separate from personnel information. Employers must keep all medical and information records confidential and in separate medical files.

“This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms,” the EEOC says.

Employers must also keep temperature logs confidential.

The ADA requires that employers keep medical information separate from personnel information. Employers must keep all medical and information records confidential and in separate medical files.

What if a worker refuses?

Workers who refuse to undergo required disease-prevention measures during the pandemic may be barred from entering the workplace in order to protect the safety of other employees, the Commission says.

COVID-19 testing at work

Employers can test employees on-site for COVID-19 as a condition of entering the workplace. The reason why is that a person with the virus “will pose a direct threat to the health of others.”

The EEOC also says employers should ensure that tests are “accurate and reliable.”

But, if employers only select certain employees for testing, the employer must have a reasonable, objective basis for doing so. A reasonable basis is testing employees who are exhibiting symptoms associated with the disease.

Additionally, the federal agency recommends that employers require that employees follow infection control practices such as social distancing and handwashing. Employers should also share information on other measures to prevent the spread of COVID-19 at work.