It has been said countless times that COVID-19 has brought about unique challenges for employers. However, these challenges also present opportunities to offer the best work environment possible in light of the circumstances. One opportunity that employers may explore is ensuring that they are maintaining a safe workplace while balancing the need to remain productive. This is especially true for the numerous essential workers who, based on their job function, do not have the option to telework and are required to report to the workplace.
Nevertheless, employers are developing creative ways to maintain the health and safety of their employees. Health questionnaires, temperature checks and self-reporting requirements are quickly becoming a part of the effort to minimize the risk of transmitting COVID-19 into the workplace. With these changes, employers must remain cognizant of the privacy risks associated with collecting certain medical information. To help our employers navigate these waters, we have provided a short outline of frequently asked questions and answers.
- May an employer inquire about health-related information from its employees in light of COVID-19? Yes, but there are limitations. Employers are permitted to obtain certain health-related information from their employees to limit the exposure of COVID-19 amongst the workforce (e.g. whether the employee is exhibiting symptoms). Employers may not, however, ask their employees if they have pre-existing conditions or are at increased risk of contracting COVID-19.
- Are employers permitted to take employees temperatures prior to the start of their shift or entering the employers’ facilities? Yes. However, employers should first implement a procedure that is consistent in application, effective in administration and confidential in nature to ensure the protection of employees’ privacy rights. Particularly, if an employer resorts to this measure, it needs to ensure that all employees starting their shift and entering the premises are undergoing a temperature check. Also, it is imperative that temperature checks are performed by someone properly trained and that all information collected is treated as confidential health information.
- Can employees be required to perform a self-check of their temperatures? Yes. Again, employers should craft a policy on self-checks to ensure that it is being handled in a consistent way.
- Can employers require their employees to stay home if their temperatures is 100.4 degrees or higher? Yes. Employers can require employees to stay home and report any COVID-related symptoms.
- Can employees be required to be tested for COVID-19? Yes. Employers may be able to require employees to be tested if they have symptoms of COVID-19 to ensure that they are not a contamination risk to other employees.
- Can an employer disclose the identity of an employee that has tested positive for COVID-19? No. The ADA prohibits disclosure of this information. However, employers may provide information to its workforce to help evaluate and minimize the risk of infection.
We will continue to share the latest developments and provide insights as we continue to monitor the ever-changing, ever-shifting legal landscape on this issue.