Forward Thinking: Planning to get back to business after COVID-19: By Russell L. Lichtenstein

Most of us are wondering what the “new normal” will be once the various stay-at-home orders have been lifted and we all get back into the workplace. It is never too early to start planning the restart of our economy by the reopening of our business locations.

There are a number of issues that employers will encounter as we begin to ramp our businesses back up.

While the law and regulations are constantly evolving in light of the unique and unprecedented environment that we find ourselves in, there are certain issues that we can address even at this early stage. The following are just a few questions and answers which hopefully will give employers some guidance for getting back to the “new normal.”

Q. Can an employer require returning employees to present medical documentation that they are free from COVID-19?
A.  Yes. Such an inquiry is permitted under the law, and specifically under the ADA, because this inquiry is not disability related. As a practical matter,
however, the medical community may simply not be able, during and immediately following the COVID-19 outbreak, to provide these “fitness for duty” certifications. Employers should begin to consider, at this early juncture, if such “fitness for duty” documentation will be required and, if so, how logistically to arrange for their workforce to obtain such examinations. These “fitness for duty” examinations should be limited to issues that surround COVID-19 and cannot be used for any other disability-related inquiries which would otherwise be unlawful under the ADA and other employee protection statutes.

Q. Can an employer take daily temperature readings of employees returning to the workplace following the COVID-19 pandemic?
A. Yes. The EEOC recently issued guidance on this point. While typically taking an employee’s temperature would be considered to be a medical examination and prohibited under the ADA and other employee protection statutes, in light of the community spread of COVID-19, employers are specifically permitted to measure the temperature of employees. Health professionals, however, point out that some people with COVID-19 do not register a fever. From a practical standpoint, employers should be equipped, should they choose to take the temperature of employees, to do this in a non-invasive efficient manner. The use of infrared forehead thermometer “gun” type devices is both practical, efficient and non-invasive. Employers wishing to take the temperature of employees following the pandemic should immediately make arrangements to acquire those items.

Q. Once businesses are reopened, can an employer ask an employee who reports to work feeling ill to leave the workplace?
A. Yes. The Center for Disease Control (“CDC”) states that employees who become ill with symptoms of influenza-like illness, including COVID-19, during a pandemic should leave the workplace. Advising employees who present with flu-like symptoms to go home is not a disability-related action. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat, which is clearly the case with COVID-19.

Q. Related to the question above, how much information may an employer request from employees who report to work feeling ill or who call in sick?
A.  An employer may ask such employees if they are experiencing COVID-19 symptoms. Employers must maintain all information about employee illness as confidential medical records in compliance with various Federal laws including the ADA.

Q. Upon returning to work, can an employer require employees to adopt infection control practices such as regular hand washing in the workplace?
A. Yes. According to the EEOC, requiring infection control practices such as regular hand washing, coughing and sneezing etiquette and proper tissue usage and disposal is permitted. Further, these actions are encouraged by the CDC.

The Employment Law Practice Group at Cooper Levenson is fully operational and ready to assist you in these very difficult times. Please reach out to Practice Group Chair Russell Lichtenstein at (609) 572-7676 or rlichtenstein@cooperlevenson.com in order to schedule a consultation on any employment related issues which you may be encountering during these most difficult times. Stay safe and healthy.

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