As COVID-19 continues to disrupt businesses and supply chains across the globe, many industries face ongoing operational obstacles as well as new, evolving compliance requirements. For hourly workforce employers, that means adapting to the new landscape and achieving compliance by avoiding accidental privacy violations, policy mishaps, and discriminatory questions: something easier said than done.
While the Center for Disease Control and Prevention (CDC) continues to provide instructions on how best to prevent the spread of the coronavirus, the actual methods needed for managing the pandemic often risk conflicting with federal and state compliance requirements. Here are the top compliance questions affecting the hourly workforce, as well as the best solutions for protecting employees’ health.
What’s the best way to monitor and identify COVID-19 symptoms in your workforce?
Transparent communication and regular check-ins go a long way towards preventing the spread of COVID-19. More specifically, the CDC encourages employers to:
- Take the temperatures of employees (100.4 degrees Fahrenheit is considered a fever)
- Have conversations addressing employees’ symptoms directly
- Alert your workforce to positive COVID-19 cases within the organization without disclosing the name(s) of the employee(s)
- Bar employees from entering the workplace who have COVID-19
- Remove those who have symptoms of COVID-19 from the worksite, or those who refuse to have their temperatures taken or answer questions related to symptoms of the virus
That said, there are limitations to how these conversations and exams can be conducted.
Can onsite employees be asked whether they have COVID-19 or the symptoms associated with the virus?
According to the EEOC, you can ask employees whether they have COVID-19, as well as whether they present the associated symptoms – so long as you do so with all employees present who could endanger those in the work environment if they were to contract the coronavirus or be carrying it.
Consider phrasing it this way for optimum compliance: Have you had contact with anyone diagnosed with COVID-19 or who has exhibited symptoms of COVID-19?
Can onsite employees be questioned about witnessed symptoms associated with COVID-19?
In the case of an employee having a persistent cough or difficulty breathing in the presence of other employees, it is compliant to:
- Address the coughing or breathing struggles directly
- Ask whether the employee has been to a doctor
- Ask whether the employee knows if she has or might have COVID-19
This is now permissible because coughing is a primary symptom of someone who has contracted COVID-19. The fatal risks associated with it spreading to more members of your workforce make addressing and removing the risk the priority.
Can absent employees, or those working remotely, be asked if they have COVID-19 or know someone who has?
Since these employees are not physically interacting with co-workers or worksite equipment, it is best to avoid these questions. Until an employee is returned to a worksite or interacting with other employees, they are entitled to the privacy rights and protections from before the pandemic.
That said, consider distributing a policy update to your employees, including: the requirements for working onsite, what to expect if an employee presents symptoms, and the process surrounding temperature checks, questionnaires, and other necessary precautions.
Can I ask employees about travel plans and possible family exposure?
It’s best to avoid asking about an employee’s family. The Genetic Information Nondiscrimination Act (GINA) prohibits employers from requesting the medical information or history of employees’ family members.
That said, you can implement a policy of having employees work remotely after traveling to high risk areas, so long as such a practice is applied uniformly and consistently throughout your organization. Do not ask an employee to be tested, as it may violate the ADA.
Is COVID-19 recognized as a disability under the Americans with Disabilities Act?
According to the EEOC, it is unclear whether COVID-19 is or could be considered a disability under the ADA. Regardless, it is considered a direct threat, so employers are permitted to bar an employee with the virus from entering the workplace.
Check out our full COVID-19 resources page, and stay tuned for COVID-19 Compliance: Part Two! We will be covering how best to compliantly manage positive COVID-19 cases, require employees to self-quarantine, and more.