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COVID-19 and Returning to Work

bakery worker wearing protective gearReturning to Work as Businesses Reopen in New York

As New York State begins to permit many non-essential businesses to reopen after months shut down to flatten the COVID-19 pandemic’s curve, many employees may fear returning to work amidst the on-going pandemic.  However, there are certain precautions an employer can take to attempt to ensure their employees’ safety during this on-going pandemic.

The United States Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with investigating claims of discrimination and retaliation in the workplace has recently issued a technical assistance Q&A to assist both employers and employees navigate these challenging and ever-changing times in the wake of this global COVID-19 pandemic.

The EEOC guidance addresses many practical return-to-work issues that both employers and employees will face as businesses begin to reopen, including medical examinations and confidentiality of medical information.

Under the Americans with Disabilities Act of 1990, as amended (“ADA”), generally employers must abide by stringent rules regarding mandatory medical examinations and inquiries for their employees.  But under the EEOC’s above guidance, there are loosened standards only as related to COVID-19 symptoms, monitoring, and diagnoses.  The EEOC’s guidance permits employers to check employees’ body temperatures and, in some cases, test employees for COVID-19.  Under the ADA, any mandatory medical test of employees must be “job related and consistent with business necessity.”  Regarding mandatory testing for COVID-19, the EEOC’s guidance makes it clear that employers may take steps to determine if employees have COVID-19 because an individual with the virus would pose a “direct threat” to the health and safety of others in the workplace.  Under the ADA, a direct threat means that an individual’s medical condition poses a significant risk of substantial harm to themselves or others, a standard which COVID-19 certainly meets.

With the EEOC’s guidance condoning mandatory medical examinations such as body temperature checks and COVID-19 testing, another concern that employees may have is how their employer is going to maintain their confidential medical information.  The EEOC’s guidance has not reduced any of the standards for employers maintaining employee confidential medical information.  The guidance makes it clear that the ADA requires all medical information about a particular employee be stored separately from the employee’s personnel file in order to limit access to confidential medical information.  This includes the employer’s records of daily employee body temperature checks, COVID-19 test results, employer’s notes or documentation from questioning an employee about any potential COVID-19 symptoms, and even any employee’s statements that they may have or suspect they have the disease.  Thus, employers have a legal obligation to ensure their employees’ medical information is kept strictly confidential.  However, the ADA and the EEOC’s guidance permits employers to notify public health authorities if the employer has learned that an employee has COVID-19.

Although not every person who has COVID-19 may experience a fever and there may be inaccurate COVID-19 test results, employers can implement these simple steps to reduce their employees’ potential exposure, as well as to alleviate some of their employees’ fear or concerns surrounding returning to work.

While laws prohibiting discrimination and retaliation in the workplace are not intended to interfere with or prevent employers from following guidelines set by public health authorities, as we continue to learn more about the on-going COVID-19 pandemic, these guidelines are subject to change.  

While many uncertainties still remain, if you feel that you are being discriminated against during the ongoing COVID-19 pandemic, please contact Borrelli & Associates, P.L.L.C. immediately to schedule a consultation.

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