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EEOC Guidance Addresses Screening Employees For COVID-19

The coronavirus (COVID-19) outbreak has changed the way most employers are interacting with their employees. Many organizations have sent employees home to work remotely, but this is not feasible in every industry. If you still need to run an office or operate a facility with employees on-site, you may wonder what you are legally allowed to do in terms of screening workers for the illness.

In March, the Equal Employment Opportunity Commission (EEOC) issued guidance in the form of a revised publication originally created during the H1N1 outbreak. Based on that guidance, here are steps you can take regarding screening employees for COVID-19:

Perform body temperature checks of employees who come into work. Under normal circumstances, employers would be restricted from conducting medical examinations and inquiries under workplace anti-discrimination laws — notably, the Americans With Disabilities Act (ADA) of 1990 and the Rehabilitation Act of 1973. But the EEOC has stated that employers covered by the ADA may measure employees’ body temperatures to help guard against COVID-19, even though doing so would constitute a medical exam. The agency cautions that some people with COVID-19 do not have a fever.

Ask employees whether they are symptomatic. The EEOC guidance allows employers to ask employees who call in sick whether they are feeling symptoms consistent with COVID-19 so the employer can assess the risk of infection to the rest of its workforce. The agency stipulates that employers must keep every employee’s health-related information confidential in compliance with the ADA.

Direct sick employees to leave work and require them to produce a doctor’s note to return. The guidance recommends employers follow the Centers for Disease Control and Prevention’s advice that employees who become symptomatic of COVID-19 leave work immediately, return home, contact their physicians, and self-quarantine. Employers may, without compromising ADA compliance, stipulate that any such employee present a doctor’s certification to return to work.

Update your hiring process. Employers can screen for COVID-19 when hiring. In fact, the EEOC mandates such screening for “all entering employees in the same type of job.” Doing so may include taking an applicant’s temperature during post-offer and pre-employment medical examinations. You may delay the start date of any symptomatic new hire and even withdraw a job offer to an employee who must start right away but is suffering from COVID-19 or has symptoms consistent with the illness.

The pandemic is driving rapid change in the flexibility and application of many laws and regulations. Consult an employment attorney on the legal implications of any employment or hiring action you are considering. Please contact us for help assessing and managing the current considerable financial challenges of being an employer.

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