As many businesses are temporarily shutting down due to Governor Murphy’s closure order here in New Jersey, what can those other employers do who remain open to help safeguard against COVID-19 infestation of its workplace. Well, the answer might surprise you thanks to a recent guidance from the Equal Employment Opportunity Commission (“EEOC”).
Under this EEOC Guidance document on the ADA and the COVID-19 virus, several measures are outlined that employers can use to protect its workplace. Along with stressing the need to follow good hygiene practices as recommended by the CDC, ADA-covered employers during a pandemic like ours may additionally ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must however maintain all information about employee illness as a confidential medical record in compliance with the ADA. Also, while generally measuring an employee’s body temperature is a medical examination, because the CDC and state/local health authorities have acknowledged community spread of COVID-19, and issued attendant precautions, employers may also measure employees’ body temperature without running afoul of any legal requirements. (However, note of caution: be aware that some people with COVID-19 do not have a fever.) Finally, you can also direct persons with symptoms of the virus to go home and leave work or just stay at home if they have any sickness at all. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. Significantly, the ADA does not interfere with employers following this advice, and many of my employer clients are regularly telling employees this to get that message out about staying home.
So, you can certainly be proactive in guarding your workplace consistent with the above guidelines. And given the serious public health crisis that now exists, I suspect even the New Jersey Department of Labor will have no issue with employers who follow this ADA guidance, so long as confidentiality is preserved relating to the receipt of employee medical information.
Please everyone out there be careful and stay safe during these trying times. We will collectively get through this together if we just act smart and do all that can be done to keep our workplaces safe when continuing to operate.