The global coronavirus pandemic has caused unprecedented changes in the workplace.  Whether you’re a worker on the frontlines of this crisis, or working from the safety of your home office, it’s important to be aware of what your employer can and cannot do in response to the pandemic.

Can my employer make me come into work?

If you are considered an “essential” worker, you may risk termination if you don’t show up to work.  Essential businesses may vary from state to state, but in Massachusetts they include:

  • Health care/public health/human services
  • Law enforcement
  • Public safety
  • First responders
  • Energy
  • Water and wastewater
  • Transportation and logistics
  • Public works and infrastructure support services
  • Communications and information technology
  • Other various community-, education-, or government-based operations
  • Critical manufacturing

 

If you do not fall into an essential category, you are likely protected by the law to work from home, if remote work is logistically possible.  OSHA requires the workplace to be “free from recognized hazards that are causing or likely to cause death or serious harm to employees,” such as a highly contagious global virus pandemic.

Can my employer take my temperature at work?

Yes.  Normally, this would be considered a medical examination, which the Americans with Disabilities Act prohibits to prevent discrimination against employees with disabilities.  However, during this health crisis, the Equal Employment Opportunity Commission (EEOC) has given the green light to employers to take employees’ body temperatures as a screening measure for COVID-19. (Though it is important to note that not all persons with COVID-19 present with an elevated body temperature.) This guidance was initially issued in 2009 in response to the H1N1 epidemic, so the move to allow employers to check employee temperatures is not novel, and the Centers for Disease Control and Prevention (CDC) has encouraged employers to engage in this practice since the beginning of the COVID-19 outbreak.  The results of any temperature checks are confidential, as per ADA requirements, and the employer cannot pick and choose who is subject to the policy.

Can my employer send me home if I have COVID-19 symptoms?

Yes.  The CDC guidelines for the workplace response to COVID-19 direct employers to send home employees who are exhibiting symptoms, including fever, cough, or shortness of breath.  Whether or not you will be able to be paid during this time will depend on your employer’s policies, and on your local laws regarding paid leave.  (For more information, see our post about the Families First Coronavirus Response Act.)

Can my employer ask me about my medical history if I do not have COVID-19 symptoms?

No.  Certain medical conditions can put people at increased risk to contract the virus, but an employer does not have the right to make an employee disclose this information.  Your employer does, however, have the right to ask for a doctor’s note or medical records if the information is required for sick leave, health insurance, or workers’ compensation.  If they ask for medical information for other purposes—to assess their workforce’s predisposition for COVID-19, for example—the employee in question must give their express permission for the records to be accessed and has the right to review them in advance.      

Can an employer screen job applicants for COVID-19?

Yes.  The EEOC states that any medical examination of an employee must be “job-related and consistent with business necessity.”  This includes instances in which “an employee will pose a direct threat due to a medical condition.” Given the highly contagious nature of COVID-19, this guidance applies.  It is important to note that the employer must screen all applicants for the same job opening.  If an applicant tests positive for the virus, employers reserve the right to delay their start date or withdraw the offer if they require that the position be filled immediately.      

Can my employer require me to work from home?

Yes.  Employers can set terms and conditions of employment, which may include working remotely.  However, if requiring an employee to work from home results in lower pay for specific individuals—similar to a demotion—that may be a legal violation.  In most industries, employers are making their best attempts to allow for physical distancing, as that is the CDC’s top advice for putting a stop to the spread of the virus.  An employer does not necessarily have to provide reimbursement to employees for the cost of setting up a home office unless such expenses cause your weekly income to drop below minimum wage.

Conversely, an employee cannot make the executive choice to work from home if they are not sick, caring for someone who is, or taking care of their children in the absence of another childcare provider.  Working from home without express permission from your employer could put you at risk for termination.    

Need to speak with an experienced employment lawyer? Contact us today.

Resources

https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act

https://www.osha.gov/Publications/OSHA3990.pdf

 

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