What HR Professionals Need to Know About Returning Employees to Work and COVID-19 Testing

The rapidly changing legal landscape surrounding the COVID-19 pandemic continues to create uncertainty for employers looking to reopen their workplaces and bring employees back to work.  Regardless of geographic location or industry, all employers are required to comply with the most current guidance from the Centers for Disease Control (CDC), in addition to state or local public health authorities, on how to ensure the safety of its workforce and prevent the spread of COVID-19 in the workplace.  Additionally, employers with 15 or more employees must become familiar with the most current guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) when testing employees for COVID-19 as a condition of reentering the workplace.  Employers want to ensure that any mandatory testing or screening complies with the EEOC’s new guidelines to avoid violating the Americans with Disabilities Act (ADA), which requires that any mandatory medical test of employees be “job related and consistent with business necessity.”

The following provides a summary of the latest EEOC guidance regarding the administration of employee testing and screening and the CDC’s recommendations on how to address employees who report to work with COVID-19 symptoms.

COVID-19 testing

Pursuant to EEOC guidance, employers may require employees to take a COVID-19 test as a condition of entering the workplace because an individual with the virus will pose a direct threat to the health of others.  To comply with the ADA, employers must “ensure” that required testing is reliable and accurate.  The EEOC suggests that employers consult the U.S. Food and Drug Administration (FDA), CDC, and other public health agency guidance on this subject.

Temperature checks

The EEOC has stated that employers may conduct temperature checks of employees entering the workplace as a means of evaluating and preventing against possible COVID-19 exposure.  The CDC recognizes a temperature equal to or above 100.4 degrees Fahrenheit as a fever.  However, the EEOC cautions employers not to rely solely on temperature checks because some people with COVID-19 may not necessarily have a fever.

Screening for COVID-19 symptoms

The EEOC has stated that the COVID-19 pandemic permits an employer to screen employees who are coming into the workplace.  Employers may ask all employees who will be physically entering the workplace if they have COVID-19, if they have symptoms associated with COVID-19, or if they have been tested for COVID-19.  Symptoms associated with COVID-19 include, for example, cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, and new loss of taste or smell.  The EEOC advises employers to rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease.

An employer may exclude those with COVID-19, or those with symptoms associated with COVID-19, from the workplace because their presence would pose a direct threat to health or safety. Additionally, consistent with the ADA, an employer may bar an employee from physical presence in the workplace if the employee refuses to answer questions about having COVID-19, having symptoms associated with COVID-19, or having been tested for COVID-19. The employer may also bar the employee’s presence for refusing to have his or her temperature taken.

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Employers who conduct screening, testing, or temperature checks should apply the same requirements to all employees entering the workplace uniformly in order to avoid any potential discrimination claims.  Employers must also maintain the confidentiality of any medical information collected or documented, separately from the employee’s personnel file.  Importantly, if an employer learns that an employee has COVID-19, the employer must protect the confidentiality of that information.

So, what should an employer do if an employee reports to work with COVID-19 symptoms?  According to the CDC, employees who are exhibiting symptoms should be immediately sent home.  Sick employees should follow CDC-recommended steps (available here) and not return to work until they have met the criteria to discontinue home isolation and have consulted with a healthcare provider and state or local health department.  For employees who will not be tested, an employee can return to work after (1) the employee has had no fever for at least 72 hours (3 full days of no fever without the use medicine that reduces fevers); (2) respiratory symptoms have improved; and (3) at least ten days have passed since their symptoms first appeared.  For employees who will be tested, employees can report back to work after (1) the employee no longer has a fever (without the use of medicine that reduces fevers); (2) respiratory symptoms have improved; and (3) they received two negative tests in a row, at least 24 hours apart.

Given the uncertainty of this pandemic and the rapidly changing local circumstances, it is recommended that employers continue to monitor updated guidance issued by the EEOC, CDC, and state/local public health authorities and agencies.

Nicole Legrottaglie Wohl is a Partner in the Sacramento office of Carothers DiSante & Freudenberger LLP, a California-based labor, employment and immigration law firm with offices throughout the state.  Her practice focuses on defending employers and management in labor and employment matters in California state and federal courts in a broad range of employment claims, including class actions and single plaintiff claims of discrimination, retaliation, harassment, wrongful termination, and wage and hour litigation.  She also regularly advises executives and human resources personnel on preventative measures to avoid litigation.  Nicole can be reached via email at nlegrottaglie@cdflaborlaw.com.

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