Question 1

Can I require employees to take an antibody test prior to returning to the office?

Accepted Answer

No.  The EEOC recently issued guidance that mandatory antibody testing before allowing employees to return to the worksite is prohibited under the ADA... "Even during the pandemic, antibody testing would be considered a medical examination and isn't job-related and consistent with business necessity..."

Question 2

What can an employer do if an employee refuses to return to work?

Accepted Answer

Employers should tread lightly here.  We have to review the employee's health concerns and legal rights under certain employment laws such as OSHA, ADA and NLRA.  Here's a great article from the Society for HR Management (SHRM) discussing this:  What to do When Scared Workers Don't Report to Work Due to COVID-19.

Question 3

Are we required to allow an employee to continue working from home after we have reopened our office?

Accepted Answer

Employers are not obligated to make remote working a permanent option for employees.  Once the office opens back up, employers can require employees to return to the office.  However, it is best to have a discussion with any employee refusing to return to the office or requesting that they be allowed to continue working remotely.  Working remotely can be considered a reasonable accommodation under the Americans with Disabilities Act.

Question 4

Can I send an employee home if they are showing symptoms of COVID-19?

Accepted Answer

Yes.  The CDC has advised that employees who appear to have symptoms of COVID-19 (cough, fever, shortness of breath, runny nose, body aches, etc should be sent home immediately and encouraged to speak with their doctor before returning to the office.

Question 5

What should I do if an employee tests positive for COVID-19?

Accepted Answer

If an employee has tested positive or is presumptive positive, for COVID-19, employers are obligated to notify other employees of possible exposure. However, employers are required to maintain confidentiality under the ADA - the employee's name/identity cannot be revealed.

Once warned of possible exposure, fellow employees should be encouraged to self-monitor for symptoms and notify a supervisor immediately if they feel unwell.

In its communication to employees, regarding potential exposure, employers should list actions taken and outline next steps (deep cleaning, closing office, other precautions).

Question 6

What health-related questions can I ask my employees?

Accepted Answer

Employers may ask questions specific to COVID-19 symptoms only. You may:

-Ask if they are experiencing symptoms of COVID-19. This includes fever, chills, cough, shortness of breath, loss of smell or taste, or sore throat.
-Ask if they or a close family member has recently tested positive for COVID19.
-Ask if they have come in contact with anyone that is known or suspected to have COVID19.

-You MAY NOT ask non-COVID19-related medical questions. Asking unrelated medical questions may impact an employee’s rights under the ADA.   Example: do not ask someone with an existing condition (e.g. immunocompromised or heart issues) if they are more susceptible to COVID19 and then require them to stay home as a result.

Question 7

Can we screen employees for COVID-19 before coming into work each day?

Accepted Answer

Yes.  the EEOC has stated that screening employees for symptoms of COVID-19 is allowed under ADA because it is considered a hazard in the workplace.   Employers can inquire about symptoms,requires self-reporting, and take employee temperatures.  Here are known symptoms: Fever or chills Cough Shortness of breath or difficulty breathing Fatigue Muscle or body aches Headache New loss of taste or smell Sore throat Congestion or runny nose Nausea or vomiting Diarrhea   You can always check the CDC for current known symptoms.   **Be careful when doing COIVD screenings - employers should make sure to screen all employees each day to minimize the risk of a discrimination claim.  And remember to keep all employee health information confidential.

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