This past weekend, beaches and certain restaurants saw an influx of people across the country. Undoubtedly, Americans want to celebrate summer and return to “normal.” However, the reality of the COVID-19 pandemic makes returning to “normal” not fully possible. Employers must focus on protecting customers and employees.
But how far can an employer go in reopening a worksite and testing employees for COVID-19? The federal Equal Employment Opportunity Commission (EEOC) has issued some guidance to assist with this difficult process. Important takeaways include:
- Under the Americans with Disabilities Act (ADA), employers cannot treat employees with disabilities different. That being said, given the COVID-19 pandemic, employers can inquire as to whether employees returning to work have specific COVID-19 symptoms in deciding whether they can re-enter the workplace. “Approved” symptoms for inquiry according to the EEOC include fever, chills, cough, shortness of breath, and a sore throat.
- The EEOC’s guidance sets forward that employers can administer COVID-19 tests to employees. However, employers must ensure that the tests are “accurate” and are not administered in a discriminatory fashion (i.e. requiring, without justification, that only some employees are tested on site). Employers must remember to keep any COVID-19 related testing results separate from employees’ regular personnel file given the confidential nature of the health information.
- Offers are employment can be rescinded if it is clear that the employee cannot work due to COVID-19. Under the EEOC’s guidance, if an employee cannot safely enter the workplace to work, the employer is not obligated to bring them onboard as originally anticipated.
Testing alone will not ensure a safe workplace. An overall COVID-19 policy, including everyday best practices, such as utilizing protective equipment, handwashing, and social distancing (when possible) will greatly reduce liability and, hopefully, further spread of the virus. Feel free to reach out to me to discuss your COVID-19-related employee questions.
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Theodora Stringham assists individuals, businesses, and organizations with growing successfully while minimizing liability. Focusing on real estate and personnel needs, Ms. Stringham executes sustainable plans for real estate development and employee matters. She provides comprehensive representation for everyday growth issues, including, but not limited to, re-zonings, site plan approvals, eminent domain/valuation concerns, employment discrimination, and disciplinary issues. Ms. Stringham’s scope of representation ranges from identifying potential liability and providing counseling/trainings, all the way through representation at trial.
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