Godfrey & Kahn’s March 16, 2020 post, entitled FAQ: Employee safety during coronavirus, referenced the Equal Employment Opportunity Commission’s (EEOC’s) prior pandemic guidance which the agency previously relied on for the 2019 novel coronavirus (COVID-19) pandemic.
Yesterday, March 18, 2020 the EEOC issued updated guidance giving employers the right to take employees’ temperatures without violating the Americans with Disabilities Act (ADA) and provided additional guidance.
The EEOC cautions employers that taking employee temperatures is not the ‘be all, end all’ solution. However, because the U.S. Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, and have issued precautions, “employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever,” the EEOC stated.
If you decide to move in this direction, you will want to put together a detailed plan that addresses how this procedure will occur. It is important to keep in mind employees’ privacy, how the information will be secured to maintain confidentiality, how you would handle an employee refusal and what actions you would take if an employee has a fever.
The new EEOC guidance also makes clear that during this pandemic, employers may ask employees who call in sick if they are experiencing symptoms of coronavirus without violating the ADA. However, it is important that you do not ask about symptoms related to other conditions. The EEOC guidance also lists the COVID-19 symptoms and you should not ask about symptoms related to other health conditions.
Recognizing that employers can require a return to work note from a doctor, and doctors are overwhelmed, the EEOC suggested new approaches such as relying on local clinics to provide a form, a stamp or email certifying that an individual does not have COVID-19. In light of limited testing ability, doctors have been issuing notes return to work notes that indicate evaluation was completed based on symptoms or other test results. This is in line with the EEOC’s suggested new approach.
Lastly, the EEOC provides guidance regarding COVID-19 and new job applicants. It outlines what employers can do to screen those applicants as well as whether or not employers can delay or withdraw a job offer.
As of this writing, Godfrey & Kahn’s Labor, Employment & Immigration Law attorneys have not seen any guidance from the Wisconsin Department of Workforce Development Equal Rights Division that indicates it would not follow this updated EEOC COVID-19 guidance.