Insights
Labor & Employment Alert: Handling the COVID-19 Pandemic
By Christopher J. Carney & Stephen P. Bond on March 13, 2020
UPDATE 3/18/20 – Governor Mike DeWine has asked business owners to begin taking the temperature of employees every day. In light of the Governor’s directive, employers can comply without fearing reprisal under the ADA; however, they should maintain confidentiality of the information obtained and uniformity of process over all employees.
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We know that many of you are grappling with the workplace consequences of COVID-19, which has now reached pandemic status. And, we understand that you may have questions on how you should handle such things as employee illness, absence, and travel. As well, we understand that you may have questions about how your business can help mitigate the spread of COVID-19, by complying with quarantine restrictions and keeping a safe workplace, while minimizing the impact to your business and bottom line.
While many of our clients are grappling with how to handle leaves of absence and provide accommodations, most are focused now on doing their part to contain the spread of this illness and provide a safe workspace. One question that may arise is whether you can take the temperature of employees (or patrons and customers). While visibly ill individuals can be sent home from work and asked to leave places of public accommodations, routine temperature screening is not recommended for the vast majority of businesses.
While there may be exceptions for businesses that are high risk or serve high risk individuals, such as nursing homes or assisted living facilities, the Americans with Disabilities Act (“ADA”) generally prohibits anything that can be deemed a “medical examination,” unless you can show that the exam is (1) job-related and consistent with business necessity, or (2) you have a reason to believe that the employee poses a direct threat to their health or safety, or to that of others (and that threat cannot otherwise be eliminated or reduced by a reasonable accommodation). Therefore, most businesses should not temperature screen employees unless public health officials determine it is necessary. And, any business that thinks it should, given the nature of its business or the individuals it serves, should undertake a proper analysis before implementing such a process in order do it a way that lessens the legal risks. What can you do?
Christopher J. Carney, Chair, Labor & Employment Practice
Kerri L. Keller, Partner
Stephen P. Bond, Partner
In the meantime, we suggest you keep up to date on what is happening in Ohio and at throughout the country, by monitoring the updates and guidance provided by the Centers for Disease Control and Prevention at www.cdc.gov and the Ohio Department of Health at https://odh.ohio.gov/wps/portal/gov/odh/home. Particularly helpful is the CDC’s Interim Guidance for Businesses and Employers, located at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
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We know that many of you are grappling with the workplace consequences of COVID-19, which has now reached pandemic status. And, we understand that you may have questions on how you should handle such things as employee illness, absence, and travel. As well, we understand that you may have questions about how your business can help mitigate the spread of COVID-19, by complying with quarantine restrictions and keeping a safe workplace, while minimizing the impact to your business and bottom line.
While many of our clients are grappling with how to handle leaves of absence and provide accommodations, most are focused now on doing their part to contain the spread of this illness and provide a safe workspace. One question that may arise is whether you can take the temperature of employees (or patrons and customers). While visibly ill individuals can be sent home from work and asked to leave places of public accommodations, routine temperature screening is not recommended for the vast majority of businesses.
While there may be exceptions for businesses that are high risk or serve high risk individuals, such as nursing homes or assisted living facilities, the Americans with Disabilities Act (“ADA”) generally prohibits anything that can be deemed a “medical examination,” unless you can show that the exam is (1) job-related and consistent with business necessity, or (2) you have a reason to believe that the employee poses a direct threat to their health or safety, or to that of others (and that threat cannot otherwise be eliminated or reduced by a reasonable accommodation). Therefore, most businesses should not temperature screen employees unless public health officials determine it is necessary. And, any business that thinks it should, given the nature of its business or the individuals it serves, should undertake a proper analysis before implementing such a process in order do it a way that lessens the legal risks. What can you do?
- Encourage sick employees to stay home and send home any employees who come to work sick.
- Temporarily relax your sick leave policy so that it is flexible and consistent with current public health guidance.
- Do not require employees to provide sick notes, as doing so is likely to burden doctors and healthcare facilities.
- Emphasize the importance of such measures as proper hand-washing and germ mitigation, and provide hand soap and sanitizers.
- Make sure that all frequently used surfaces and are cleaned regularly.
Christopher J. Carney, Chair, Labor & Employment Practice
Kerri L. Keller, Partner
Stephen P. Bond, Partner
In the meantime, we suggest you keep up to date on what is happening in Ohio and at throughout the country, by monitoring the updates and guidance provided by the Centers for Disease Control and Prevention at www.cdc.gov and the Ohio Department of Health at https://odh.ohio.gov/wps/portal/gov/odh/home. Particularly helpful is the CDC’s Interim Guidance for Businesses and Employers, located at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.
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