QUESTIONS AND ANSWERS ABOUT EMPLOYEE RIGHTS DURING THE COVID-19 PANDEMIC
Do you have to disclose your COVID-19 related symptoms to your employer? Can your employer send you home if you appear to be exhibiting COVID-19 related symptoms?
The COVID-19 pandemic has created enormous upheaval for employees and employers across all professions and industries in the United States. Countless employees have been fired or furloughed, and for those of you who remain employed, new questions arise about your rights in the workplace.
On March 27, 2020, the Equal Employment Opportunity Commission issued guidance on how the COVID-19 pandemic affects the rights of employees in the workplace. The following Q&A distills the guidance that the EEOC has recently provided.
Q: During the COVID-19 pandemic, can my employer ask me if I have COVID-19-related symptoms, or insist on taking my temperature?
A: Yes, employers can take the temperature of employees who are physically entering the workplace, and can also ask employees whether they are suffering any of the common symptoms of COVID-19. Employers can lawfully require employees who exhibit symptoms to stay out of the workplace. However, your employer should not require employees who telework from home to discuss their symptoms, because those employees are not at risk of spreading the virus in the workplace.
Q: Can I refuse to answer my employer’s questions about whether I have COVID-19 symptoms?
A: If you refuse to answer these questions, your employer may legally bar you from entering the workplace.
Q: Can my employer share information about my COVID-19 symptoms or testing status with my co-workers?
A: No. Under the Americans with Disabilities Act (ADA), your employer must maintain the confidentiality of your personal medical information. However, your employer may appoint one person to act on behalf of the company and interview you about your symptoms and your contacts with your co-workers, so that the employer can warn those co-workers about their potential exposure to COVID-19 in the workplace. Your employer should not identify you (or any other employee) by name as the potential source of the exposure.
Q: Can my employer ask me whether my family members have COVID-19 or symptoms associated with COVID-19?
A: No. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about your family members. However, your employer can ask you more generally whether you have been in contact with anyone (not just family members) who have COVID-19 or symptoms associated with COVID-19.
Q: My co-worker is showing symptoms of COVID-19, but keeps coming to work. Can I tell my supervisor that my co-worker is showing symptoms, or will I violate the ADA if I report my co-worker?
A: You will not violate the ADA by reporting your co-worker’s symptoms to a supervisor.
Q: Can my employer bar employees over age 60 from reporting to the workplace, because older employees are more likely to suffer severe symptoms if they contract COVID-19?
A: No. Barring workers from the workplace on the basis of age (as compared to barring employees who exhibit symptoms of COVID-19 or who test positive for COVID-19) violates the Age Discrimination in Employment Act (ADEA).
Q: If I am over age 60, is my employer required to allow me to work remotely, given that I am more likely to suffer severe symptoms if I contract COVID-19?
A: No. The ADEA does not require employers to provide reasonable accommodations such as telework. However, if your employer allows other employees to telework, it must not treat older workers differently on the basis of age.