Labor & Employment

What are the implications around screening and testing in the workplace that employers must be cognizant of as they strive to comply with the federal Americans with Disabilities Act (ADA)?
Although pandemic preparedness in the workplace and its intersection with the ADA is not necessarily a novel concept (in fact, the EEOC recently updated existing guidance on this very topic), the unique epidemiological aspects of COVID-19 means businesses will rely significantly on preventative measures such as screening and information gathering to protect their workforce while continuing operations. This alert will address the most important points of consideration concerning the “traditional” and likely the most common screening methods of temperature-taking and employee questionnaires.

As an initial matter, as of March 2020, the COVID-19 pandemic meets the direct threat standard such that employers are granted authority to make disability-related inquiries or perform medical examinations. This point, however, is not without limitations.

May you take your employees’ temperatures to determine whether they have a fever?

Yes, but as with all medical information, the fact that an employee had a fever or other symptoms is subject to federal ADA and state disability confidentiality requirements. You must maintain an employee’s medical information in a separate confidential file and may not disclose the information to other employees. However, you may disclose the name of an employee to a public health agency when you learn the employee has tested positive for COVID-19.

When screening existing employees entering the workplace, what may you ask about?

You may ask current employees if they have tested positive for COVID-19 or are experiencing symptoms of COVID-19, which includes fever, chills, cough, shortness of breath, or sore throat. Again, employers must maintain all information about employee illness, including symptom questions, in a separate confidential medical file in compliance with federal ADA and state disability laws.

May you ask about the health of an employee’s family members?

No, it is a violation of the Genetic Information Nondiscrimination Act (GINA) to request or require health information about an employee’s family members. However, you may ask whether the employee has had contact with anyone who has been diagnosed with COVID-19 or who has symptoms (without requiring the employee to identify the individual(s)).

What may you do under the ADA if an employee refuses to permit you to take their temperature, or refuses to answer questions about whether they have COVID-19, or symptoms associated with COVID-19, or have been tested for COVID-19?

During a recent Outreach Webinar the EEOC advised that under the circumstances existing today, the ADA allows an employer to bar employees from entering the workplace if they refuse to have their temperature taken or refuse to answer questions about whether they have COVID-19, symptoms associated with COVID-19, or have been tested for COVID-19.

If you are hiring, may you screen applicants for symptoms of COVID-19?

No. You cannot screen job applicants for COVID-19.

May you take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes, medical exams are permitted after an employer has made a conditional offer of employment as long as you do so for all entering employees in the same type of job.

May you delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace. Accordingly, you may delay the individual’s
start date.

If you need the individual to start immediately, may you withdraw an offer if the individual has COVID-19 or symptoms associated with it?

Yes. Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.

Lastly, as with nearly all things COVID-19, there may be variations between national, state and local measures related to temperature testing and other screening measures that you as an employer
should be aware of.

For additional information on how to prepare your business for re-opening in a safe and compliant manner, please contact Rhonda Nelson at rln@severson.com or Tara Mohseni at tm@severson.com.