Employers asking employees COVID-19 related questions

Employers asking employees COVID-19 related questions

On March 27, the EEOC hosted an informational webinar to respond to questions related to COVID-19. All answers consider the current regulations as of March 27. You can watch the webinar here. 

The laws from EEOC do not hinder the COVID-19 regulations from CDC nor state or local public health authorities. Employers should continue to keep up with CDC and local/state government regulations, as things are rapidly changing. 

Here is a summary of the EEOC’s webinar questions on what and how employers can ask their employees COVID-19 related questions:

An employer is permitted to take the temperature of employees coming into the workplace. What else is an employer allowed to do?

  • Employers may ask all employees who are entering the workplace if they have COVID-19 or associated symptoms. Employers may ask employees if they have been tested. Employers may exclude those with symptoms (cough, fever, shortness of breath, sore throat, chills) from the workplace because “their presence would pose a direct threat to health or safety.” However, if employees are teleworking, then employers are generally not permitted to ask these questions. 

What can an employer do under the ADA if an employee refuses to take their temperature, answer questions, etc? 

  • Under the circumstances, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to answer questions about whether they have COVID-19, associated symptoms, or has been tested. Employers may bar employees’ presence if he refuses to take his temperature. To gain cooperation, employers should ask the reason for the employee’s refusal. Remember, the ADA prohibits broad disclosures of an employee’s medical conditions (discussed further below). 

May a manager ask only one employee these questions? 

  • Yes, however, the ADA requires the employer to have reasonable belief based on objective evidence that this person might have the disease (i.e. has witnessed symptoms).

Can an employer ask an employee who is physically coming into the workplace if they have family members with COVID-19 or associated symptoms? 

  • A better question from a public health perspective would be: Did an individual have contact with anyone who the employee knows has been diagnosed with COVID-19 or associated symptoms? The EEOC considers that the approach should be broad and not only limit an employee to talk about their family. GINA (Genetic Information Nondiscrimination Act) prohibits employers from asking employees medical questions about family members. 

If you’d like legal counsel to ask questions about the crisis or to plan for your next steps as a business, schedule a consultation with us.