COVID-19 update – What can employers do when faced with an employee who calls out sick?

21October

COVID-19 update – What can employers do when faced with an employee who calls out sick?

If you are an employer, you are probably aware that certain state and federal laws prevent you from inquiring into an employee’s private, medical condition. The Americans With Disabilities Act (ADA) affords employees a certain amount of confidentiality regarding their medical issues. However, with COVID-19 being designated a global pandemic that can spread from exposure, there had to be some middle ground that would allow an employer to ask about COVID-19 if an employee calls out sick or shows symptoms of the virus.
On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) issued new guidelines that allows employers to make sensible inquiries regarding potential COVID-19 exposure and infection. Under these new guidelines, employers may ask COVID-19 screening questions upon entry into the workplace without it being a violation of an employees privacy rights under the ADA. If the employee refuses to answer the question, the employer may bar them from entering the workplace. An employer may also ask follow-up questions if an employee calls out sick so that they can determine if that illness may be COVID-19 related.
With that said, there is never a bright line rule that applies to every situation. If an employee works remotely and does not come into contact with other coworkers, then the employer may not ask that employee COVID-19 screening questions. These screening questions must also be applied uniformly and when the employer has “a reasonable belief based on objective evidence” that the employee has COVID-19.
Employers can ask if an employee has been in contact with anyone who has COVID-19, but they should keep it general and not ask whether that sick person is a family member. Also, the employer must still try to maintain confidentiality to the best they can. So, while you can inform other employees that someone in the office was sick, you should not name that employee.
Posted by Daniel Levy  Posted on 21 Oct 
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