March 26th, 2020
What Do You Do If Your Employee Tests Positive for Coronavirus or Has Symptoms of the Coronavirus
Posted in: Employment Law Featured Tagged: Coronavirus, Darla J. McClure
Author: Darla J. McClure
As an employer, we all want all of our employees, clients and those with whom we do business to be safe. A way to stay safe and healthy is to continue to follow the Centers for Disease Control and Prevention (CDC) guidelines regarding social distancing, washing your hands, and taking other precautions to limit the spread of the Coronavirus. But what should you do as an employer when an employee tests positive for the Coronavirus or begins to exhibit symptoms of the Coronavirus.
If the employee is exhibiting symptoms send them home and ask them to seek medical advice. If the employee confirms that he/she has tested positive, the CDC recommends that employers make aware, all employees who were in close physical contact with the affected employee, of the potential exposure so that employee can seek medical attention should they so desire. In no event, however, shall an employer, when communicating to those employees who have come in contact with the affected employee, divulge the affected employee’s identity without their prior written permission. It is also recommended that employees who were in close contact (i.e. within 6 ft) with the affected employee also be sent home and self-isolate for a period of 14 days. It is suggested that employers who have been advised of a confirmed case, thoroughly clean and disinfect the areas where the affected employee might have been, both as a means of reducing the spread of the virus but also as a proactive measure to help manage employee concerns regarding the potential exposure. The CDC has issued guidance on cleaning and disinfecting areas where affected employees might have been.
In addition, the Equal Employment Opportunity Commission (EEOC) has recently published guidance on how to handle certain situations and/or questions dealing with employees who fall ill so that you as the employer do not run afoul of employment laws such as the Americans with Disabilities Act (ADA) and Rehabilitation Act. Below is an excerpt from the EEOC on frequently asked questions:
How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?
Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
More on issues affecting businesses and individuals in our COVID-19 Resource Center.