EEOC Confirms Multiple Actions Employers Can Take in Response to COVID-19 Pandemic; Ohio Governor Encourages Employers to Use Temperature Screening

EEOC Statement Confirms Lawful Employer Actions in Response to COVID-19

The U.S. Equal Employment Opportunity Commission (EEOC) released a statement Wednesday for employers dealing with the pandemic. While not an official agency “guidance document,” the EEOC statement applies to the current COVID-19 pandemic many of the principles in its 2009 guide, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” which was issued during the H1N1 outbreak.

Specifically, the EEOC statement confirms a number of actions that employers can lawfully take in an effort to protect against the introduction or spread of COVID-19 in the workplace.  According to the agency, employers can take the following actions without running afoul of the ADA or Rehabilitation Act:

• Ask employees if they are experiencing symptoms of the coronavirus – for COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat – so long as they keep the information confidential in compliance with the ADA
• Take employee body temperatures (although EEOC cautions that some people with COVID-19 do not have a fever)
• Require employees to stay home if they have symptoms of COVID-19
• Require employees who are returning to work to supply doctors’ notes certifying their fitness for duty (although EEOC cautions such a requirement may not be practical, as health care providers may be too busy to supply certifications)
• Screen job applicants for symptoms of COVID-19 after making a conditional job offer, so long as the employer does so for all entering employees in the same type of job
• Delay the start date of a job applicant who has COVID-19 or symptoms
• Withdraw a job offer when it needs the applicant to start immediately, but the individual cannot safely start work due to COVID-19 symptoms

Ohio Governor Says Employers “Expected” to Check Employee Temperatures

Ohio Governor Mike DeWine at a news conference Wednesday exhorted businesses in the state to begin “immediately” taking the temperature of “every single employee every day before they come to work.” DeWine stressed, “we’re dead serious about employers taking temperatures. We’re expecting them to do this.” He further emphasized that employers should “send employees home who are sick.”

While many employers may want to move quickly to comply with the governor’s request, practical considerations may delay implementation. At a minimum, employers should consider (1) the type of thermometer that will be used; (2) which employees are qualified to conduct the screenings; (3) the location of the screenings and how to maintain employee privacy; (4) availability of personal protective equipment for the screeners; (5) procedures for responding to employees who refuse to submit to the screening; (6) how to address employees that have a temperature; (7) procedures for protecting the confidentiality of employee medical data; and (8) whether the duty to bargain with a union exists.