As businesses continue preparing to reopen, many employers share the same concern—what actions can employers take to provide a workplace that is safe from COVID-19?
Because the virus is primarily spread from person to person, preventing people who may be infected from entering the worksite is one of the most effective tools an employer can use to promote the safety and wellbeing of its employees. To that end, the EEOC has confirmed that employers may screen employees who physically enter the workplace by asking if they have COVID-19 or symptoms associated with COVID-19 (e.g., cough, sore throat, fever, chills, and shortness of breath). Employees with COVID-19 or who exhibit symptoms associated with COVID-19 may be excluded from physically entering the workplace because their presence would pose a direct threat to the health and safety of other employees.
Employers in search of more concrete answers also have other tools at their disposal.
Under normal circumstances, the Americans with Disabilities Act (ADA) prohibits subjecting employees to medical examinations unless they are job-related and consistent with business necessity. Generally, a medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition. However, given the significant risk of substantial harm posed by the presence of an infected employee to the health and safety of other employees sharing the same workplace, employers may also measure employee’s body temperatures.
The EEOC recently confirmed that employers may also administer a COVID-19 test before permitting employees to return to the workplace. The EEOC explained that consistent with ADA standards, employers should ensure that any test administered is accurate and reliable. In this regard, the EEOC encourages employers to review guidance from the U.S. Food and Drug Administration as well as guidance from the CDC or other public health authorities.
If employers choose to screen employees from the worksite via a temperature check or other test, it is important to remember that the ADA requires all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. California employers also need to be aware of the California Consumer Privacy Act (CCPA) requirements. More information on CCPA requirements can be found in this article.
Additionally, employers must be prepared to compensate employees for any additional time it takes to conduct screenings prior to a shift starting. While there is no definitive guidance on this topic, many recognize that California courts may find such required screenings compensable under California’s suffered or permitted standard.
Finally, regardless of what approach employers ultimately choose, they should be mindful not to engage in disparate treatment based on protected characteristics in any decision related to screening or exclusion.