In 2009, during the H1N1 pandemic, the EEOC issued guidelines on how employers can navigate the workplace during a pandemic. The guidelines are applicable to the coronavirus and employers should take measures to comply.
Per the ADA, which is applicable to employers with 15 or more employees, an employer is generally prohibited from asking disability-related questions that might elicit information about a disability. Under the pandemic preparedness guidelines, however, an employer may permissibly inquire into the symptoms associated with the pandemic. Employers may even go so far as to take the temperature of the employees, despite the fact that it's generally considered a medical examination. COVID-19 symptoms may include fever, chills, cough, shortness of breath, or sore throat. Such information, however, must still be kept confidential.
Employers may also require that employees stay at home if they have symptoms of the coronavirus. Furthermore, employers may require a doctor’s note before an employee returns for work. From a practical standpoint, however, medical providers may be very busy during this time and may not be able to provide doctor’s notes. Thus, employers may have to rely on other sources of information to verify that an employee is healthy and able to return to work.
With regard to the hiring of new employees, employers may screen applicants for COVID-19 symptoms, as long as it does so for all other applicants applying for the same type of job. Employers cannot, for instance, target only certain genders or races with such inquiries. Furthermore, employers may permissibly delay a new hire’s start date if he or she has COVID-19 symptoms.
Contact LGC if you have questions about navigating employment issues during this difficult time.