The EEOC released additional guidance on the types of questions employers can ask about symptoms and diagnosis and handling COVID-19-related information. This information is important for those “essential” businesses continuing to operate and keep their employees safe.
What can employers ask when an employee calls in sick?
Employers may ask if the employee has symptoms of COVID-19: fever, chills, cough, shortness of breath, and sore throat. Employers also may ask about new symptoms reported by the CDC to possibly be related to COVID-19, such as loss of smell and taste, diarrhea, nausea, and vomiting.
What can employers do to screen employees reporting to work?
Employers may ask about symptoms associated with COVID-19, such as those identified above. Employers also may ask employees if they have been exposed to COVID-19 or tested for COVID-19, and the results of any testing.
Employers may measure employee body temperature during the COVID-19 pandemic, and in Ohio, are encouraged to do so at the start of each workday or shift. (Ordinarily, this is considered a medical examination and is prohibited.) A temperature of 100.4F or higher is considered a fever and a potential symptom of COVID-19. Note that time spent waiting to have one’s temperature taken likely will be considered “working time” under the FLSA and should be paid time.
Employers may require employees with a fever or symptoms of COVID-19 to stay home from work.
According to EEOC guidance, employers may bar employees from the workplace if they refuse to answer screening questions about symptoms or refuse to have their temperature taken.
What can employers do with medical information gathered about symptoms or from taking daily temperature readings?
It must be stored in a confidential medical file. Use of the employee’s regular confidential medical file is permitted for this purpose.
What if an employer suspects that an employee has COVID-19; can the employer just ask that employee about their medical symptoms and take his/her temperature?
Yes, with a reasonable belief based on objective evidence indicating that the employee may have COVID-19. An example could be an observation that the employee seems unwell or is coughing at work.
Can an employer ask if an employee’s family members or household members have COVID-19?
No. It would be a violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC made it clear that the Americans with Disabilities Act (ADA) and GINA will continue to be enforced during the pandemic. An employer could alternatively ask about known exposure to a person with confirmed or presumed COVID-19.
What is an employer’s duty to notify others about an employee’s COVID-19 diagnosis?
An employer should keep the name(s) of employee(s) with COVID-19 confidential from other employees. An employer can disclose the COVID-19 diagnosis to public health authorities. An employer can and should notify employees of exposure to COVID-19 but should not disclose the identity of the employee, even if it is very likely that employees will figure out who it was. Only those at the employer with a need to know the information should be informed; this information should be handled the same as ADA accommodation and FMLA leave requests.
What can employers do to screen applicants?
Employers can screen employees post-offer for symptoms of COVID-19. Employers are permitted to delay the start date, or revoke the job offer, of employees with a fever or other COVID-19-related symptoms.
What accommodations might be required for essential workers?
For workers that must do their job duties in the workplace, some employees with medical conditions may require an accommodation to stay home and work remotely (if possible) or medical leave. Employers should require documentation from a healthcare professional to document the employee’s medical condition and the risk if the employee is required to report to the workplace and risk exposure to COVID-19. If the employee can report to work but requires additional precautions, examples of accommodations might be a different shift schedule (with reduced exposure to the public or co-workers), transfer to another position with less or no contact with others, physical barriers between the public or co-workers, an isolated workstation or office, or PPE, such as a mask. Employers should think creatively about separating employees during the pandemic. Conference rooms, break areas, etc. could be used as workstations to increase social distancing.
Any existing accommodations already in place should be modified, as needed, for the COVID-19 era by working with the employee and his/her healthcare provider.
Keep in mind that any accommodations during the COVID-19 pandemic are temporary and can be reevaluated as the risks from the pandemic are reduced or eliminated.