As the federal government rolls out plans for a phased reopening of the economy, employers have begun strategizing about what return to work might look like for their workforce. A central element in all return to work plans, rightfully, is safeguarding the workplace and protecting employees from infection risk. While in the past, employers would not have been allowed to conduct medical testing or even inquire about employees’ medical conditions, the rules have changed in the time of this COVID-19 pandemic.
Based on proclamations from the Centers for Disease Control, the Equal Employment Opportunity Commission (EEOC) has indicated that employers can consider employees coming to the workplace to be a “direct threat” to safety. This creates relaxed standards under the Americans with Disabilities Act (ADA), such that an employer may now ask employees: “Do you have symptoms of COVID-19?”; “Have you been tested for COVID-19?”; and, even, “Do you have or have you had COVID-19?” The ability to obtain medical information extends to the administration of medical examinations at the workplace, including temperature checks. The EEOC has also indicated that employees who refuse to answer such questions, or refuse testing, can be excluded from the workplace.
Employers should be cautious about asking questions of certain employees, rather than all employees. There must be a reasonable belief of threat based on objective evidence (such as obvious symptoms) if directing inquiries to specific, but not all, employees. Employers should also not ask if family members have COVID-19 or common symptoms because of Genetic Information Nondiscrimination Act (GINA) prohibitions on asking about the medical conditions of an employee’s family. A better inquiry is whether the employee has had contact with anyone who has COVID-19, or symptoms associated with COVID-19.
We know there is a strong desire to protect high-risk employees, such as employees who may be pregnant or those with diabetes. The ADA still prevents employers from making inquiries to determine who might fall into those high-risk populations, or taking other steps that would treat such employees differently, such as requiring them to stay home. Similar prohibitions on different treatment would apply to older employees, because of the Age Discrimination in Employment Act (ADEA).
All of this may feel uncomfortable to some employers, and COVID-19-related screenings and questions may feel overly invasive. But it also may be required, now or in the near future. For example, if you are an employer open for business in Pennsylvania, you are now obligated by order of the Department of Health to implement temperature checks as employees enter your place of business. We are likely to see other states follow suit.
Medical inquiries were unthinkable for employers several months ago, but are now an important tool in the fight to create a safe environment for employees (and potentially the public). If you haven’t yet begun to formulate your strategy to address and minimize the risk of exposure and infection in your worksites, now is the time.
To think through testing protocols and processes best suited to your worksite and your employee population that stay within the guardrails, contact your Mercer consultant.