The President and governors of individual states are discussing plans to reopen businesses in the coming weeks.  Some of the measures employers will be required to take will be dictated by governmental agencies and for particular industries.  A few of the most commonly discussed steps include: temperature checks, use of PPE, heightened hygiene maintenance, return to work certificates and testing.

Employers May Take Employee Temperatures

Usually (such as during the regular cold and flu season), taking employee temperatures is an impermissible medical exam under the ADA . The ADA prohibits medical exams during a person’s employment unless it is job related and consistent with business necessity . A medical exam is job related and consistent with business necessity if the employer has a reasonable belief based on objective evidence that 1) the employee has a medical condition that will impair their ability to perform essential functions of the job or 2) that the employee may pose a direct threat to others in the workplace due to a medical condition.

The EEOC recently clarified in its update to its Pandemic Preparedness in the Workplace and the ADA guidance that because the CDC and the WHO have designated COVID-19 as a pandemic, measuring employee temperatures meets the direct threat standard and is allowed during this public health crisis . Employers should remember that employee temperatures are medical information that must be kept confidential under the ADA and only shared with supervisors or other employees on a need to know basis. Employers should also protect the persons taking employee temperatures by issuing them some form of PPE (masks and gloves) and using no touch thermometers where possible.

Employers May Ask Employees Who Report Feeling Ill if They Are Experiencing COVID-19 Symptoms

The EEOC’s guidance says that employers may ask employees if they are experiencing COVID-19 symptoms (fever, cough, chills, shortness of breath, loss of taste, sore throat etc) if they report feeling ill . But, the EEOC’s guidance leaves it unclear as to whether employers can ask employees who are not feeling ill to disclosure whether they have a medical condition that would put them at risk of complications from COVID-19. The pandemic preparedness guidance updated by the EEOC says that employers may ask questions about medical conditions that predispose individuals to complications only if the pandemic creates a direct threat to the disabled individuals . Unlike other questions answered by the EEOC in their updated guidance (such as whether employers may take employee temperatures), the EEOC did NOT specify whether the current COVID-19 pandemic has reached this direct threat threshold . Because the EEOC has left this as somewhat of a grey area, the safest course of action for employers is to avoid asking these questions.

Employers Can Require Employees to Wear PPE and Wash Hands

Employers can and should require employees to wear personal protective equipment (PPE), like masks, while in common areas of the workplace and wash their hands while at work . However, employers still must engage in the interactive process if an employee requests an accommodation to deviate from these protocols if a disability would make these requirements difficult for them. For example, if an employee has eczema and using the hand sanitizer provided by the employer inflames their skin, the employer can offer an alternative of washing their hands with sensitive soap instead.

Employers Can Require Fitness For Duty Certification For Employees Returning to Work

The EEOC says that employers may require employees returning to the workplace after COVID-19 to first submit a note from a doctor certifying that they are fit for duty . However, doctors may be overwhelmed at this time and not have time to perform these kinds of exams.

Serology Testing Should Not be Used for the Time Being

Serology tests that would identify whether someone has the antibodies to combat COVID-19 (meaning they previously contracted the illness and are now potentially immune) have recently come on the market. Some businesses are wondering if they would be able to use these so called “immunity passports” to test employees and return those to work who are immune. There are multiple problems with this idea. First, these tests are still in development and have a high false negative rate. The World Health Organization issued guidance on April 24, 2020, that there is no evidence that persons who have recovered from COVID-19 and have antibodies are immune from contracting it again . Further, because these tests look for the presence of antibodies created to fight COVID-19, they will not identify a person who is currently infected by the virus and has not yet developed the antibodies. Moreover, under current EEOC guidance, these tests would most likely constitute a medical exam that is prohibited by the ADA. In the event that these tests are improved or become much more accurate, the EEOC may update its guidance to allow employers to use these during this pandemic.

While businesses may still be several weeks away from reopening, employers need to start developing their return to work plans for employees so that comprehensive health and safety measures can be implemented when those businesses reopen and employees return to work.