Testing Employees for Covid-19

My last few posts have been about the new paid sick leave requirements imposed on businesses by the Families First Coronavirus Response Act (“FFCRA”).  Now that Governor Kemp has decided it’s safe to allow some businesses to reopen, I thought it would be appropriate to address what employers can and cannot do in determining the health of those employees who are returning to the workplace.

GEORGIA LAW

As an “at will” employment state, Georgia law imposes very few limits on what conditions Georgia employers can impose on their employees if they want to keep their jobs.  At this time, Georgia law does not prevent an employer from doing the following before allowing its employees to enter the workplace: (a) taking the temperature of an employee (with something other than a mouth thermometer) or (b) asking them if they (i) have Covid-19, (ii) any of the symptoms of Covid-19, (iii) been exposed to anyone who has Covid-19 or its symptoms, or (iv) been tested for Covid-19.  If a reliable test is developed for Covid-19 that provides results quickly, an employer could test its employees before allowing them into the workplace.

Any employee who refused to have their temperature taken or answer any of above questions could be denied entry into the workplace and their employment terminated.  Of course, if any employee has a high temperature or answered any of the questions yes, they could also be denied entry into the workplace.  Georgia law would also permit the employer to terminate the employment of such an employee.  However, FFCRA, which takes precedence over Georgia law, prohibits employment termination in that situation.  It will expire on December 31, 2020.

Whether an employee whose employment was terminated for the above reason would be entitled to unemployment benefits is unclear given the current environment around Covid-19.  However, at a minimum, employers should provide notice to their employees of the procedures they intend to follow regarding Covid-19 exposure in order for their employees to be admitted into the workplace before implementing those procedures and make it clear to them what the consequences will be if an employee refuses to do what the employer asks.  Doing so will establish a basis for claiming any such employee was terminated for knowingly violating the policies and procedures of the employer.

If an employee refuses to come to work solely due to the fear of being infected by the Covid-19 virus, their employment can be terminated, as well.  To provide a basis for disputing any such employee’s claim for unemployment benefits, the employer should make it clear ahead of time what the consequences will be for such an employee and give them the opportunity to come to work before terminating their employment.

If an employee begins to exhibit symptoms of Covid-19 while in the workplace, they can be asked to leave the workplace.  If they refuse to do so, their employment can be terminated.  Again, to provide a basis for disputing any such employee’s claim for unemployment benefits, the employer should inform its employees about what will happen in the above situation and what the consequences will be for any employee who refuses to follow its policy.

Regardless of how the employee reacts when asked to leave the workplace, the employer should try to find out from the employee the identity of any co-workers with whom they came in close contact while exhibiting Covid-19 symptoms or for the incubation period before then and make a report to its local public health agency about any such employee.  The employer should then inform the affected co-workers of their possible exposure to Covid-19 and require them to take the remedial actions suggested by the Centers for Disease Control and Prevention.

EEOC GUIDANCE

Those Georgia employers who have 15 or more employees are subject to the federal employment discrimination laws, which impose many limits on what an employer can do in dealing with employees about Covid-19 related issues.  The law most involved in dealing with those issues is the Americans With Disabilities Act (“ADA”).  The Equal Employment Opportunity Commission (“EEOC”) is charged with the enforcement of the ADA and most other federal employment discrimination laws.  It has issued guidance on what the ADA and those other laws require of employers in dealing with the issues discussed above (I found the transcript of the webinar the most helpful).

Fortunately, the EEOC’s guidance is consistent with most of what Georgia law allows, with some important exceptions.   An employer who is subject to the federal employment discrimination laws cannot:

  1.  Ask an employee who teleworks full-time and therefore, does not come into the workplace any questions about their Covid-19 symptoms, status, or exposure.
  2. Pick out only certain employees to take their temperature or ask questions of, unless the employer has a reasonable basis for believing the employees in question may have Covid-19.
  3.  Reveal the name of any employee who has Covid-19 or its symptoms to co-workers or anyone else, except those in upper management who have a need to know or to the local public health agency.
  4.  Exclude from the workplace any employee who is in a high risk category for Covid-19 (e.g., persons over 65, pregnant women) but has no symptoms or any employee based on their national origin.

In addition, an employer subject to the ADA must keep an employee’s temperature results and answers to any questions asked of them about Covid-19 test results, symptoms, or exposure confidential and in a location that is separate from the employee’s regular personnel file.

OSHA

The Occupational Safety and Health Administration (“OSHA”) imposes on all employers a duty to provide for their employees a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  While OSHA has not enacted any regulations regarding what doing so requires of insurance agency and similar employers with respect to Covid-19, it has issued  guidance aimed at various other employers.  However, all employers would be wise to implement at least some of the procedures first described above, as they are aimed at determining who may be at risk for spreading Covid-19 in the workplace.  An insurance agency or any other employer who does not do at least some of those things on a regular basis may well find itself being charged with a failure to provide a safe workplace for their employees.

 

 

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