With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.

1.  Can I check my employees’ temperatures before they enter the  workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?

Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.

A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.

In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.


Continue Reading Employee Testing for COVID-19: What Works Now for Your Worksite?

On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.

Disability-Related Inquiries and Medical Exams

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.


Continue Reading More on the Return to Work: the EEOC Issues New COVID-19 Related Guidance

Even though vacation plans may be hampered by face coverings and social distancing this summer, US employers are still likely to see requests for time off from employees who want to step away from sheltering-in-place and visit reopening regions. But while employers may agree that their employees should take a break from work, they shouldn’t agree to putting other employees or customers at higher risk of catching COVID-19 when a traveling employee returns.

What can US employers do-without crossing the line-to keep tabs on vacationing US employees? We address some common questions in the following Q&A.

Q.  Can I ask my employees about their travel plans when they request vacation time? Or can I ask them where they went when they return from vacation?

A.  Yes, you can ask employees requesting vacation time to disclose their travel plans (or ask employees where they traveled once they return). The key is to make sure the information you’re requesting is in accordance with business necessity and that you are asking for the information in a non-discriminatory manner.

Business necessity: Employers have a general duty under Section 5(a)(1) of the Occupational Safety and Health Act to ensure that the workplace is free from recognizable hazards likely to cause death or serious physical harm. Keeping the workplace and employees free from cases of COVID-19 provides the business justification employers need to ask where employees are going during their time off. If your workforce is still working remotely, you have a business justification to make sure your employee travels with a company laptop or other necessary equipment should the employee become stranded or be required to quarantine upon return. Employees may want to know why you’re asking about their personal vacation plans; be prepared to explain why you’re asking.


Continue Reading What the Traveler Saw: Handling Employee Vacation Requests During COVID-19

We are pleased to share a recent SHRM article, “What to Do When Scared Workers Don’t Report to Work Due to COVID-19,” with quotes from Robin Samuel. This articles discusses several topics including employee’s legal rights and how to respond to an essential worker’s fear of returning to work.

Click here to view the article.

The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, first published in 2009, to specifically address the COVID-19 pandemic. The updated guidance is here.

Significantly, the EEOC confirms that the COVID-19 pandemic meets the “direct threat” standard for employee medical examinations and disability

Predictions about the spread of COVID-19 through significant parts of the population and its effects on American life are staggering. The Centers for Disease Control and Prevention (CDC) reports more than 54,000 confirmed cases in the United States. As countries across the world implement new, extraordinary measures in an attempt to contain the coronavirus, which

When encouraging employees to wash their hands is not enough!

As the COVID-19 virus spreads rapidly throughout the world, and the possibility of a pandemic declaration inches closer each day, much of the advice to employers so far has focused on generic “good hygiene” recommendations from health departments.This advice is of limited utility for employers

The Seventh Circuit significantly narrowed the EEOC’s broad interpretation of the American with Disabilities Act (ADA) last month. The court held that the ADA does not cover discrimination based on a future impairment.

The Seventh Circuit determined that the “regarded as having” prong of the ADA does not extend to applicants who are rejected due to an employer’s concerns about future disabilities. Shell v. Burlington N. Santa Fe Ry Co. The Seventh Circuit joins the Eighth, Ninth, Tenth, and Eleventh Circuits in holding that the present tense “having” in the ADA does not include the future tense “will have.” The facts here involved an obese applicant, and not an applicant with an existing predisposition, so its practical impact may be narrower than at first blush.


Continue Reading From The Seventh Circuit: Future Disabilities Not Protected Under The ADA

Last Wednesday, the United States Court of Appeals for the Seventh Circuit held that the Americans With Disabilities Act (“ADA”) does not require employers to provide additional unpaid leave as an accommodation to employees who have expended their Family and Medical Leave Act (“FMLA”) leave. Although the Seventh Circuit’s ruling upheld its prior decision in Byrne v. Avon Productions Inc., the decision is significant because it directly contradicts the Equal Employment Opportunity Commission (“EEOC”)’s position that granting additional, long-term unpaid leave to employees is a reasonable accommodation under the ADA.
Continue Reading Seventh Circuit Holds that the ADA Does Not Require Additional Unpaid Leave After FMLA Leave Is Exhausted