Returning to work amid a pandemic: Luis Avila discusses COVID-19 tests in the workplace

As Michigan's economy begins to slowly reopen, employers are taking steps to protect their workers from further spread of COVID-19. Attorney Luis Avila discusses the implications of the U.S. Equal Employment Opportunity Commission's (EEOC) determination that employers may screen their employees for COVID-19.

Rapid Growth: The U.S. Equal Employment Opportunity Commission (EEOC) recently determined that employers may administer and/or require COVID-19 testing before allowing employees to return to the workplace. What does screening involve, and does it apply to all industries?

Luis Avila: The EEOC uses the term "medical examination," which it defines as a procedure or test that seeks information about an individual's physical or mental impairments or health. The examination must be job-related and consistent with business necessity. Further, an employer may ask employees if they are experiencing COVID-19 like symptoms, such as fever, chills, cough, shortness of breath, or sore throat. There is currently no restriction on which employer may implement this.

RG: If an employee refuses symptom screening, can they lose their job?

LA: Yes. The EEOC has taken the position that the COVID-19 pandemic meets the direct threat standard, so employers can implement certain testing or disability-related inquiries and make them a part of the employee's job requirements.
 
RG: Does the EEOC provide guidance for employees who are asymptomatic or who have recovered from COVID-19?

LA: During the pandemic, employers are permitted to make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of complications. The EEOC's protections for individuals with disabilities continue to apply during the pandemic.

RG: If someone does show symptoms and is not permitted to enter the workplace, does this mean their employment is at risk?

LA: Not necessarily. This is dependent on each employer's policies. Further, employers with less than 500 employees must provide up to 80 hours of paid sick leave if an employee needs to take time off because they have developed COVID-19 symptoms or have tested positive for COVID-19. Employers may also allow or require individuals to use available paid time off. 

RG: Are employers expected to keep a record of symptom checks, and how will this information stay confidential?

LA: Employers must treat medical examination records like other confidential medical records. Employers are not required to keep the results of the medical examination (e.g. daily temperature checks, etc.), but if they do, they should keep the results in a confidential file separate from the employee's personnel file.
 
RG: How should employees protect their rights when re-entering the workplace? What is NOT acceptable for an employer to do during COVID-19?

LA: Employees should strictly follow their employer's workplace rules and protocols, particularly with regard to social distancing, wearing personal protective equipment (such as face masks), etc. Further, there are several workplace protections, both federal and state, that employees should be aware of. Employees should review the State of Michigan's Executive Orders regarding COVID-19 to understand their workplace rights.
 
RG: What are some helpful, easy-to-access resources for employers and employees as they re-enter the workplace?

LA: Individuals should visit:

varnumlaw.com
michigan.gov
eeoc.gov
cdc.gov

Luis Avila is a partner at Varnum LLP, focusing on labor, employment and immigration issues. This article has been prepared for informational purposes only and does not constitute legal advice.

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About Luis Avila
Luis focuses his practice on labor, employment and immigration issues. Luis has a wide range of experience in traditional labor matters, including grievances, arbitrations, collective bargaining negotiations, union drives, and matters in front of the National Labor Relations Board (NLRB) and the Michigan Employment Relations Commission (MERC). He counsels public and private sector employers on a number of workplace matters, including effective employee handbooks and policies, disciplinary and dispute resolution procedures, discrimination, disability accommodation, wage-hour matters, family medical leave, and harassment and litigation prevention.
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