Employers allowing workers to return to their offices during the pandemic are concerned about the specific health questions they can lawfully ask and how they should handle vaccinations. Fortunately, the EEOC (Equal Employment Opportunity Commission) is continuing to create and update guidelines for handling these important matters.
Although pandemics require some flexibility with workplace standards, employers must still respect specific sections of various laws. These include the ADA (Americans with Disabilities Act), the Rehabilitation Act, Title VII of the Civil Rights Act, the ADEA (Age Discrimination in Employment Act), GINA (Genetic Information Nondiscrimination Act), and other federal, state, and local laws governing employee workplace protections.
Here are some key questions and answers that can help guide most employers now that COVID-19 vaccines are becoming available. Great care must be taken to avoid violating any disability and other legally protected rights related to worker privacy while addressing pandemic issues.
Basic answers to questions about maintaining a safe workplace and requiring vaccinations:
1. Q: When an employee calls in sick, how much information can an employer request regarding
the worker’s current health status related to the pandemic?
A: The EEOC states that during a pandemic, employers required to respect ADA rules and
regulations can ask their employees if they are currently experiencing such symptoms of
COVID-19 as chills, fever, cough, shortness of breath, or sore throat. Any such information
obtained must be held confidentially in the employer’s records, in keeping with ADA
2. Q: When can an ADA- covered employer take body temperatures of their workers during the COVID-19 pandemic?
A: It is only because there is an ongoing pandemic that employers can currently measure each worker’s body temperature. At any other time, such activity would likely be viewed as an unauthorized medical examination under the ADA and other legislation. The CDC (Centers for Disease Control) condones the taking of employee body temperatures now since thispractice can help prevent the spread of the coronavirus. However, employers must keep in mind that some people who have COVID-19 may not run any fever at all.
3. Q: Can employers require employees to undergo COVID-19 tests administered on their own property – or bring in results of such tests periodically?
A: The ADA (Americans with Disabilities Act) allows for certain tests to be run that are
related to an employee handling a job – if the tests are directly tied to the business necessity of keeping all workers equally safe and healthy. To avoid problematic legal claims, it would be wise to have all employees obtain their COVID-19 tests from their own doctors or other third parties. Employers can require each employee working in an office setting with others to bring in written proof of their test results.
4. Q: Can an employer require antibody test results from employees before allowing them to
return to the company’s offices?
A: No, because under the CDC’s Interim Guidelines, it is stated that antibody tests are equal to prohibited medical examinations under the ADA. Your lawyer can provide you with additional information about these standards if they should change.
5. Q: Can our business ask current employees returning to the office if they have been recently tested for (or diagnosed with) COVID-19?
A: Yes, such questions are allowed for those returning to your offices. You can also inquire
if they are experiencing any established COVID-19 symptoms such as chills, fever,
a cough, or shortness of breath. However, such questions are probably not permissible for
any employees handling all their assignments on a teleworking basis – since they do not
present an immediate health or safety threat to the rest of your employees.
6. Q: Can our company tell employees that obtaining a CDC-approved vaccine is a mandatory requirement for working in our office?
A: Yes. Once such vaccines are readily available to all, you can request that all employees who want to work in your offices obtain a vaccine. While the pandemic continues, this type of
requirement will not be viewed under the ADA as a forbidden “medical examination.”
Given the rather complex and potentially invasive medical questions that might have to be
answered prior to the administration of a vaccine, it is probably wise to consider having
your employees’ own doctors – or other third parties — administer their shots.
7. Q: Are there some hidden legal issues that can arise in connection with our company
requesting that all employees obtain vaccinations?
A: Yes. Some disabled people may be concerned that the vaccination may unduly add
new health risks to their medical conditions. In addition, some employees may object to
obtaining a vaccine for faith-based reasons. Your attorney can speak with you at greater
length about these issues, based on the current, updated EEOC guidelines. Whenever fair
accommodations can be made – such as allowing these employees to work solely at home –
that may be desirable. However, if these employees want to later return to your office for
any purpose, you may need additional legal advice on how to handle these issues.
NOTE: Since most of these standards are being regularly updated, it is wise to stay in touch with your Houston employment law attorney. This will allow you to stay informed about any new CDC or other medical health standards and practices that must be observed.
Please feel free to contact one of our Murray Lobb attorneys. Once we have established a formal working relationship, we can provide you with the critical legal advice you require for all your business, corporate, or estate planning needs. We are also available to draft the various contracts and other documents you need while conducting your daily business activities.