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What issues may arise as businesses re-open?

As our community continues to “flatten the curve” and state and local governments begin to relax or remove stay-at-home orders, employers face unprecedented issues as they return to work. Recently, the Equal Employment Opportunity Commission (EEOC) highlighted potential issues that may occur as businesses re-open.

First and foremost, the EEOC advises that employers continue to rely on the information published by the Centers for Disease Control and Prevention (CDC), the World Health Organization (WHO), and other reputable medical sources regarding guidance on emerging symptoms associated with COVID-19.

The EEOC further advises that to preserve public health and safety during the pandemic, employers may make some disability-related inquiries and/or conduct medical examinations under appropriate circumstances. Employer inquiries and medical exams must be limited to those of business necessity, however, and they must not be done in a discriminatory manner. Additionally, employers must keep all information about employee health confidential pursuant to the Americans with Disabilities Act (ADA) and the Health Insurance Portability and Accountability Act (HIPAA).

Because the CDC and other reputable health authorities have acknowledged the ability of COVID-19 to spread throughout communities and issued attendant precautions, employers can measure employees’ body temperature in appropriate circumstances of “business necessity.” Employers should note, however, that some individuals with COVID-19 do not have symptoms such as a fever.

For businesses hiring new employees, the EEOC permits employers to screen job applicants for COVID-19 symptoms, so long as the employer does so for all entering employees in the same type of job.

Another precaution employers may undertake is the required use of personal protective equipment (PPE) and other infection control practices at the workplace. Keep in mind though, that these measures impose an employer’s obligation to provide reasonable accommodations for qualified individuals with a disability. For example, an employee with a latex allergy would require non-latex gloves or a reasonable alternative. Newly implemented protocols and policies should be displayed conspicuously for both employees and customers to follow.

Again, as the COVID-19 pandemic continues to change and evolve, employers should remember to monitor guidance from public health authorities, as that is also subject to change. Therefore, employers should continue to follow the most current information on maintaining workplace safety.