Keeping Workplaces Safe: EEOC Advises Employers They Can Screen Employees for COVID-19 Symptoms

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Much like the underlying public health situation, the legal environment surrounding the COVID-19 pandemic remains in a constant state of change. Regulators and members of the public alike must adjust to a “new normal” when it comes to maintaining safe workplaces. To that end, the Equal Employment Opportunity Commission (EEOC) recently revised its own COVID-19 guidance to advise employers on what steps they can take to screen employees for COVID-19 without running afoul of the Americans with Disabilities Act (ADA) or similar laws.

The EEOC issued its revised guidelines on April 23, 2020. Critically, these revisions stated that employers “may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.” Specifically, an employer may administer tests that are known to be “accurate and reliable,” based on the most up-to-date guidance from the Food and Drug Administration and the Centers for Disease Control and Prevention. The EEOC cautioned, however, that testing only reveals whether the virus that causes COVID-19 “is currently present,” and that a negative test does not mean the employee cannot “acquire the virus later.”

It should be noted that as of April 20, 2020, the FDA said that it “had not authorized any COVID-19 test to be completely used and processed at home.” The FDA has, however, authorized tests that allow for collection of specimens at home, with processing completed at an outside laboratory. And while some states have authorized laboratories to develop and perform their own COVID-19 tests under state law, Florida is not currently one of those states.

What Questions Can You Ask Employees Related to COVID-19?

Even without formal diagnostic testing for COVID-19 available to the general public, EEOC officials further elaborated on what steps employers can take to protect their work sites during a March 27 outreach webinar. For example, Sharon Rennert, an attorney with the EEOC, said during this webinar that employers may “take the temperature of employees who are coming into the workplace.” An employer may also ask if an employee has experienced “any symptoms associated with COVID-19,” such as “cough, sore throat, fever, chills, and shortness of breath.”

If an employee refuses to allow the employer to take their temperature, or declines to answer questions related to symptoms, the employer can bar that employee from entering a work site. Rennert added that an employer may direct their questions at a specific employee–as opposed to all employees generally–if there is a “reasonable belief based on objective evidence” that the employee singled out “might have the disease.”

Rennert also cautioned employers that even when such questions and other testing may be permissible under the ADA, there are other legal obligations that need to be honored. For instance, an employer cannot disclose an employee’s medical information to other workers. Similarly, an employer may not ask an employee specific questions about their family members’ medical condition, although you can ask if the employee “has had contact with anyone” who may have developed COVID-19 or its associated symptoms.

Contact a Florida Employment Lawyer If You Have Additional Questions

As explained above, the legal situation surrounding COVID-19 remains just as fluid as the public health response to the virus itself. Federal and state regulators will no doubt continue to amend and expand upon their legal guidance to employers as new questions emerge. If you need assistance in helping to sort out what you can–and cannot–do legally in your own workplace, contact a qualified Florida employment law attorney right away.

https://www.floridalaborlawyer.com/job-protection-under-fmla-why-you-must-ensure-your-employees-return-to-the-same-or-equivalent-position-after-taking-leave/

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