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COVID-19: Questions You Can and Can’t Ask Your Employees

COVID-19: Questions You Can and Can’t Ask Your Employees

While the global pandemic has completely upended the economic landscape in the U.S., local employers are finding it increasingly difficult to toe the line between keeping their workers safe and remaining compliant with ever-changing guidelines. Find out what you can and can’t ask your employees during the coronavirus pandemic. 

 

Background Basics

The steady reopening of local economies around the country has ushered in a wave of confusion and concern for employers looking to get back to “normal” while juggling the additional responsibilities of preventing the spread of a deadly virus. 

What’s resulted is a number of compliance questions that can be difficult to track. How do you keep your workers safe? How do you keep your clientele safe? What are the steps that you can and can’t take to mitigate the danger to both, all while limiting your own legal liability

Below, you’ll find a handful of questions that may help guide how you manage and reopen your workplace.

 

6 Questions You Can Ask Your Employees

Please note that the questions below aren’t completely representative of what you can ask employees during this time period. Additionally, keep in mind that all discussions relating directly to medical inquiries are subject to ADA confidentiality requirements

  1. Are you experiencing flu-like symptoms? While the response to this question must be kept as a confidential medical record, ADA-covered employers can ask employees about their symptoms if an employee calls in sick or reports an illness. 
  2. Can I take your body temperature? As of March 2020, employers can request to measure an employee’s body temperature to help limit the spread of COVID-19, as fevers are one of the most common symptoms
  3. Do you have your PPE? Otherwise known as personal protective equipment, PPE is one of the many acronyms that has become synonymous with the pandemic. Employers can require that their team wear PPE depending on the nature of the job. 
  4. During your trip, did you visit anywhere under lockdown? If an employee has traveled during the pandemic, employers are permitted to ask whether their teammate is returning from an area that’s been under CDC- or state/local-imposed restrictions. 
  5. Did you remember to wash your hands? Employers are permitted to require employees to adopt infection-control practices, such as handwashing.
  6. Why did you miss work yesterday? If you suspect a medical explanation is behind an employee’s absence, you’re allowed to ask why they missed work.

 

4 Questions You Can't Ask Your Employees

Protecting your team’s right to privacy is important in maintaining a safe workplace. In some cases, employees may not even be aware of their rights. So, while you may have their best interests in mind, you must be certain that you’re remaining compliant. 

Avoid asking the following questions: 

  1. Do you have a medical condition that puts you at greater risk for infection? As an employer, you cannot inquire about your employee’s existing medical conditions. However, if they volunteer this information, you must keep it confidential. 
  2. Have you gotten your vaccinations yet? Given existing ADA and Civil Rights Act legislation, an employee may be exempt from otherwise-mandatory vaccines. As a result, employers cannot require compulsory vaccinations for their workers. 
  3. Have you had the coronavirus? Employers can ask how a person is feeling in general, but any specific inquiries about illnesses could infringe on ADA protections.
  4. Will you take a COVID-19 antibodies test before returning to work? The CDC clearly states that “serologic test results should not be used to make decisions about returning persons to the workplace.” Additionally, the Equal Employment Opportunity Commission (EEOC) echoed this sentiment in its updated guidelines by pointing out that an antibody test “constitutes a medical examination under the ADA.”

COVID-19 Return to Work Readiness Checklist

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