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Can employers legally require employees to test for COVID-19 and ask employees about their illness?

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The Equal Employment Opportunity Commission (EEOC) is the agency tasked with enforcing federal employment discrimination laws.

Recently, the EEOC has issued new guidance about what steps employers are permitted to take during the coronavirus, also known as COVID-19, pandemic in order to protect employers. Below is a summary of the steps that the EEOC identified which employers can take to protect against COVID-19. However, for more information, you can review the EEOC’s guidance here.

Here are 5 things employers can do:

  1. Employers can ask employees whether they have any COVID-19 symptoms when they call in sick.

The EEOC identifies COVID-19 symptoms as fever, chills, cough, shortness of breath, or sore throat. However, employers should remain aware that they are required to maintain all information about employee illness as a confidential medical record in order to comply with the ADA

The EEOC further stated that, as public health authorities and doctors learn more about COVID-19, they may expand the list of COVID-19 symptoms, and employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease to guide employers in asking questions to determine whether employees would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

  1. Employers can take the body temperature of employees.

Generally, taking the body temperature of an employee us a medical exam governed by the ADA. However, during the COVID-19 pandemic, employers may measure employees' body temperature. The EEOC explained that this is because the CDC and state/local health authorities have acknowledged the community spread of COVID-19 and issued attendant precautions. The EEOC also cautioned that employers should remain aware that some people with COVID-19 do not experience a fever.

  1. Employers can require employees to stay home if they have COVID-19 symptoms.

As the EEOC explained, this is because the CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace, and the ADA does not interfere with employers following this advice.

  1. Employers can require a doctor’s note certifying the employee’s fitness for duty before returning to work.

The EEOC explained that such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

  1. Employers can, subject to certain requirements and limitations, administer a COVID-19 test before permitting employees to enter the workplace.

However, mandatory medical tests are covered under the ADA. The ADA requires that any mandatory medical test of employees be "job-related and consistent with business necessity." Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Employers must also ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.

If you have a question regarding employee rights law, you should contact an experienced employee rights attorney at Douglas, Leonard & Garvey, P.C.