Home
Knox Law Institute
Publications
Measures to Protect the Workforce During COVID-19 (2020)

Measures to Protect the Workforce During COVID-19 (2020)

Posted on October 15, 2020

Originally published in October 2020, as part of a "Tips" webinar

This article has not been updated for current law since the date of its posting on the website. This article is not intended to provide any legal advice. Please seek advice of your professional council.

Any U.S. federal and state tax advice contained in this communication is not intended or written by the Knox Law Firm to be used, and cannot be used by you, for the purpose of: (i) avoiding penalties under the Internal Revenue Code that may be imposed upon you, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

Pursuant to the ADA, once an employee begins work, any disability-related inquiries or medical examinations must be job related and consistent with business necessity.

Information an employer may request from an employee who calls in sick:

During a pandemic, the 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 illnesses as a confidential medical record in compliance with the ADA.

Taking an employee’s body temperature during the pandemic:

Generally, measuring an employee’s body temperature is a medical examination. However, since the CDC and state and local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature.

Note, however, that some people with COVID-19 do not have a fever.

Requiring employees to stay at home:

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.

Employees returning to work can be required to provide a doctor’s note certifying fitness for duty. Such inquiries are permitted under the ADA either because they would not be disability-related or, since the pandemic is truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

Administering a COVID-19 test:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if the employees entering the workplace have COVID-19 because an individual with the virus will pose a “direct threat” to the health of others.

Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. Of course, consistent with ADA standards, employers should ensure that the tests are considered accurate and reliable.

Author: Mark T. Wassell

Originally published in October 2020, as part of a "Tips" webinar