EEOC Clarifies That Employers May Temperature-Test Employees During COVID-19 Pandemic

Pullman & Comley - Labor, Employment and Employee Benefits Law

Governors in many states, including Connecticut and New York, have issued Executive Orders that will result in non-essential businesses closing – or relying exclusively on employees working from home – for a period of time.  Essential businesses, however, will continue to operate and those businesses will want to take steps to minimize the chance of employees getting sick in the workplace.  The EEOC recently updated its guidance to allow more medical testing in the workplace, including clear guidance that checking employees’ temperatures is allowed in light of the current pandemic.  This right should continue at least as long as the national emergency declaration is in place. 

What else did the EEOC update?

  1. Employers may ask employees who call in sick if they are experiencing symptoms of the pandemic virus including fever, chills, cough, shortness of breath or sore throat.  As a reminder, employers must treat this as confidential medical information in accordance with the ADA.
  2. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19, employers are expressly permitted to check the temperatures of employees.  Employers must keep in mind, however, that not all individuals with COVID-19 will have a fever.
  3. Employers can, and should, require sick employees to leave the workplace.
  4. While the EEOC recognizes the right of employers to require doctors’ notes certifying fitness for duty upon return to work, the EEOC also noted that with doctors and other health professionals being so busy, alternative means of certification may be necessary.
  5. An employer who is hiring may screen applicants for symptoms of COVID-19 after making a conditional job offer, as long as it is doing so for all new employees.  This may include taking the applicant’s temperature.
  6. An employer may delay the start date of a new employee who is showing symptoms of COVID-19.
  7. An employer may withdraw a job offer if it needs the applicant to start immediately and the applicant has COVID-19 or symptoms of it. 

Should there be further updates from EEOC, we will note them on this blog.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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