During the H1N1 (swine flu) outbreak a decade ago, the EEOC issued guidance for employers about Pandemic Preparedness in the Workplace. With the World Health Organization’s declaration of COVID-19 as an international pandemic, the EEOC guidance is once again at the forefront. The guidelines discuss the rights and responsibilities of employers and employees toward protecting the health of the workplace during this time, and the interplay of the Americans with Disabilities Act (ADA) with those issues. They include a question and answer section addressing what an employer can and cannot due during a pandemic, a valuable resource to be sure.

Employers should rely on the latest CDC and state or local public health assessments when making these sensitive decisions. Earlier today, additional EEOC guidance was released specifically related to COVID-19. During the unique circumstances of this pandemic, employers can lawfully do the following:

• Ask employees who call in sick whether they are experiencing COVID-19 symptoms (fever, chills, cough, shortness of breath, sore throat), in an effort to protect the rest of the employer’s workforce. This information should be treated as a confidential medical record.
• Require employees to stay home if they exhibit COVID-19 symptoms (or send them home if they are already at work).
• Take an employee’s temperature if the employer is concerned the employee is infected with COVID-19. But be aware that some people with COVID-19 never have a fever.
• Require a doctor’s note before an employee can return to work after exhibiting symptoms of COVID-19. But employers should be aware that our healthcare system will be extremely burdened during this pandemic, and doctors may be too busy to provide the typical type of documentation. The CDC is urging employers to consider alternative options or relaxed requirements at this time.
• Ask about an employee’s travel to affected areas (regardless of the reason) and, when appropriate, require the employee to stay home from work for the CDC-recommended period. For travel to Level 3 countries, this means the employee should remain at home for 14 days even if he or she does not have any COVID-19 symptoms. For travel to Level 2 countries, the employee should monitor their health and practice social distancing for the 14-day period.

For employers (such as grocery stores or delivery services) hiring new workers to meet increased demand during this time, they may screen applicants for symptoms of COVID-19 and take applicants’ body temperatures only after the employer makes a conditional job offer. An employer may also delay the applicant’s start date if he or she exhibits COVID-19 symptoms, or withdraw the job offer entirely if the employer needs to fill the position immediately and the applicant exhibits symptoms or has a confirmed positive test result.

During a pandemic, employers may also encourage employees to telework and require infection-control practices (such as handwashing) or personal protective equipment (face masks or gloves) in the workplace.

Like so much of the other guidance from public health officials, the underlying goal of the EEOC’s guidelines is to maintain a safe working environment for all employees. In these uncertain times, that may include employers taking action to keep those with COVID-19 symptoms out of the workplace and prevent further spread of the virus. But, as always, employers should be mindful that they do not violate federal disability laws in the process.

By Kristen L. Brightmire and Rebecca D. Bullard
kbrightmire@dsda.com and rbullard@dsda.com