Employers should be primarily concerned with the safety of their employees and customers. What should an employer do if an employee tests positive for Coronavirus/COVID-19?
Employers are not required to test employees for COVID-19. In fact, under the Americans with Disability Act (ADA), an employer cannot require a group of employees to be screened for COVID-19 or any other disease. Further, employers cannot make a blanket determination that people of a certain race, nationality, or country of origin are more likely infected than others. To do so would violate numerous laws and regulations of the Equal Employment Opportunity Commission (EEOC). However, failure to protect employees from exposure to COVID-19 may be a violation of the Occupational Safety and Health Act (OSHA). These federal regulations may seem like they all contradict each other, but there is a way to piece the puzzle together.
The current pandemic does not excuse employers from complying with the ADA, EEOC, or OSHA requirements. Instead, employers need to be cognizant of how the (daily) changes in laws and executive orders affect their employees.
In 2009, during the spread of the H1N1 virus, the EEOC developed its Pandemic Preparedness in the Workplace guidance. It has been updated as of March 21, 2020, to address the COVID-19 pandemic. This guide addresses the questions an employer can ask (or not ask) an employee related to medical examinations, disabilities, and direct threats to the safety of others that cannot be reduced by reasonable accommodation.
If an employer knows an employee is infected with COVID-19 or suspected to be infected, the employer cannot release the name of that employee to other employees. The employer can notify employees that another employee tested positive or is suspected to have COVID-19. Failure by the employer to notify its employees of the potential risk and exposure to COVID-19 could put the employees at risk for their safety and health, triggering OSHA, and could be negligence on the part of the employer.
Several federal agencies have put out guidelines to help employers deal with COVID-19, including the CDC, OSHA, and the EEOC. Use them. If you don’t understand them, call us to help guide you through them.
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