Tips from the Other Side: What’s Acceptable During a Pandemic

By Meghan Droste, August 19, 2020

Last month, the return-to-work efforts at several federal agencies made the news, with employees and some members of the Senate expressing concerns about the safety of these plans.  With the ongoing risks of the coronavirus still present across the country, there will be some significant changes for those employees who transition back to their offices in the coming months. Because we are still in the midst of a pandemic, some of the rules regarding medical exams and medical information are a bit different than usual. I highlighted below some key guidance from the EEOC on what is and what is not acceptable during this time:

• Agencies may ask employees if they are experiencing symptoms of COVID-19. Normally an employer is not permitted to ask employees if they are sick, but the rules are different during a pandemic. If employees will be in the workplace, agencies may ask if they are currently experiencing the recognized symptoms such as fever, chills, a cough, shortness of breath, and a sore throat. The Commission advises that employers continue to check the CDC’s guidance to stay current on what the known symptoms are. Agencies should also remember that some people with an active infection will be asymptomatic.
• Agencies may check employees’ temperatures. Temperature checks are medical exams so employers cannot usually require all employees to submit to them before entering the workplace. The pandemic changes things. As long as a fever remains a recognized symptom (something that seems unlikely to change), employers may require temperature checks. But again, the Commission reminds us that not everyone who has COVID-19 will have a fever.
• An agency may require employees to take a COVID-19 test and provide the results to the agency. While agencies may require COVID-19 tests because the virus poses a direct threat to others in the workplace, agencies may not require employees to undergo antibody testing. The Commission has specifically stated that antibody tests, which do not provide information about an active infection, do not meet the job-related and consistent with business necessity standard.
• Agencies may order symptomatic employees to go home. An agency may direct an employee who is displaying any of the recognized symptoms of COVID-19 to go home and may require a doctor’s certification before allowing the employee to return. As the Commissions notes, employers should remember that employees may experience significant delays in receiving test results or being able to see a doctor during this time.
• Agencies may delay start dates for new employees who have COVID-19 symptoms. An agency may also withdraw a job offer if there is a need for the applicant to start immediately and it is not possible to wait the required quarantine period before the applicant enters the workplace. An agency should not, however, delay or withdraw an offer for an asymptomatic applicant who will start working remotely and not report to a duty station.
• Agencies may not delay a start date or withdraw a job offer simply because an applicant is in a high-risk category. If an applicant in a high-risk category is willing to enter the workplace and has no symptoms, there is no justification to delay a start date or withdraw an offer. Doing so could result in a finding of discrimination based on sex, age, or disability, depending on the specific applicant’s protected category.

For those of you who will be returning to work soon, I wish you good luck and good health.  And for everyone else who will be moving into their sixth month of remote work soon, stay strong! Droste@FELTG.com