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Measures to Protect the Workforce During COVID-19 (2020)

Measures to Protect the Workforce During COVID-19 (2020)

Originally published in October 2020, as part of a "Tips" webinar

Pursuant to the ADA, once an employee begins work, any disability-related inquiries or medical examinations must be job related and consistent with business necessity.

Information an employer may request from an employee who calls in sick:

During a pandemic, the employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illnesses as a confidential medical record in compliance with the ADA.

Taking an employee’s body temperature during the pandemic:

Generally, measuring an employee’s body temperature is a medical examination. However, since the CDC and state and local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.

Note, however, that some people with COVID-19 do not have a fever.

Requiring employees to stay at home:

The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.

Employees returning to work can be required to provide a doctor’s note certifying fitness for duty. Such inquiries are permitted under the ADA either because they would not be disability-related or, since the pandemic is truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

Administering a COVID-19 test:

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 screening steps to determine if the 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 initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. Of course, consistent with ADA standards, employers should ensure that the tests are considered accurate and reliable.

Author: Mark T. Wassell