As employees return to work and attempt to manage the minefield that is COVID-19, employers and employees are being asked to work together now more than ever. A single employee testing positive for COVID at an office, restaurant, bar, gym, or any other business can have an outsized effect on the company. That one employee could infect other employees or patrons, and news of a positive test can effectively shut down businesses that provide services directly to the public, causing significant disruption of the business as cleaning crews may be brought in while the entire staff now seeks to procure COVID-19 tests. These types of situations have left employers with the inclination to control as much about their employees as possible to minimize the risk. This article will explore the fine line between what employers can and cannot ask of their employees when it comes to COVID-19 precautions within the office.
Getting hired in the current job climate is difficult and the Equal Employment Opportunity Commission (“EEOC”) has attempted to protect current employees by shifting some burden onto the newly hired employees. After making a conditional job offer, employers may screen the potential employee for COVID-19 symptoms and may take their temperature as part of a pre-employment medical exam. This testing must apply to all potential employees being hired during this time. Since the Center for Disease Control (“CDC”) has made it clear individuals with COVID-19 should not be in the workplace, if it is discovered the potential hire has COVID-19 or is suspected to have COVID-19, employers may delay their start date. Finally, if the job offer relates to a time-sensitive position but the employee has COVID-19 or COVID-like symptoms, the EEOC has stated an employer may withdraw the job offer. Also important to note – the EEOC has an entire section dedicated to the hiring and retaining of persons who are susceptible to COVID-19 because of their age. This added emphasis may indicate the EEOC is paying increased attention to potential age discrimination in hiring/firing practices during this time.
Once an employee is physically in the office, the CDC and EEOC have approved various measures to help prevent the spread of COVID-19 in the workplace. Typically, if an employee calls in sick, the American Disabilities Act (“ADA”) prevents the employer from inquiring about the nature of the illness. Now, however, if an employee calls in sick, the EEOC states the ADA now allows employers to ask if the employee is experiencing symptoms of COVID-19 (i.e., fever, chills, coughs, shortness of breath, sore throat, or any other symptom identified by the CDC). Employers may also require daily temperature checks once an employee reaches the office, despite the temperature checks technically being a medical examination which is typically not allowed under the ADA. Furthermore, along with temperature checks, the EEOC states employers may ask employees to certify every day that the employee does not believe they have COVID-19, they do not have symptoms, and they have not been exposed to a person with COVID-19. Employers may keep daily logs of the above-noted information, however, the information must stay confidential and secured according to ADA guidelines.
If an employee has been exposed or has COVID-19 symptoms, the CDC has instructed that such employees should leave the workplace, and thus employers can send employees home if the employee is at the office or require employees to stay at home. Once the employee is able to return to the office, previous CDC guidance stated an employer could, and should, require two negative COVID-19 test results. Recently, in July of 2020, the CDC seemingly pared back its guidance, no longer recommending the testing strategy prior to returning to work, and instead recommends a 10-day quarantine period for mild/medium symptoms and a 20-day quarantine for severe/critical symptoms, with optional testing.
Given how detail-oriented the EEOC has been in releasing guidance for the employers, and how many of these workspace procedures are ADA-sensitive, it would behoove employers to monitor the EEOC and CDC websites for further instruction. Just last week the CDC released updated guidance on how to deal with COVID-19 and has updated their guidance multiple times since their initial publication earlier this year. This article will be updated as time goes on with pressing or significant changes that come from the CDC or EEOC to keep our faithful readers up-to-date and in-the-know.