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travel abroad; or (c) the employee is known of the infected employee must remain
to have been exposed to a person who confidential to the extent possible.
is a confirmed carrier of the virus. During
these examinations, an employer may ask Employers must be careful not to violate
an employee if he or she is experiencing any state, federal, or local laws when
any flu-related symptoms, what symptoms implementing new protocols designed to
the employee is experiencing, whether the prevent the spread of COVID-19. For instance,
employee has visited a doctor or has been employers should avoid taking adverse
tested for COVID-19, the employee’s recent employment actions (termination, demotion,
travel history, and the employee’s reasoning etc.) against an employee who misses
for any recent work absence. work or is sent home due to the outbreak
of COVID-19. Additionally, employers must
The CDC and U.S. Department of Labor implement all such protocols uniformly
(DOL) advise that employees who exhibit and equally among all employees to avoid
flu-related symptoms can and should be violating anti-discrimination laws. For
sent home immediately and prohibited example, if an employer chooses to send
from returning to work until they are an employee home for exhibiting flu-like
symptom-free for at least 24 hours. symptoms, it should also send home all other
employees exhibiting flu-like symptoms.
If an employee has traveled to a country
designated a Level 3 travel risk area
(currently China, Iran, South Korea, and
much of Europe), it is recommended that WORKPLACE
the employee be sent home immediately
and be required to remain away from SAFETY STANDARDS
the workplace for 14 days. Further, if an
employee is confirmed to have COVID-19, The General Duty Clause of the
disabilities that the ADA was designed to it is suggested that all employees who Occupational Safety and Health Act
protect, the EEOC calls for more flexibility have been in contact with that employee (OSHA), requires employers to keep their
in allowing employers to conduct medical should be sent home and a professional workplaces free from recognized hazards
examinations and screenings in the cleaning company should be hired to do a that are causing or are likely to cause death
workplace if doing so is “consistent with a full cleaning of the affected workspace. or serious physical harm. While it remains
business necessity” or if the employer has to be seen whether COVID-19 is considered
“a reasonable belief the employee poses Ultimately, any medical information a “recognized hazard” pursuant to 29 U.S.C.
a direct threat to the health or safety” of employers received from an employee 654(a)(1), OSHA standards tend to rely
others and the workplace. during one of these screenings, heavily on CDC guidelines, which could
examinations, or otherwise, must remain
EXAMPLE: An employer may institute confidential. If an employee is confirmed to consider a pandemic the scale of COVID-19
as such a hazard. Accordingly, employers
screenings for employees who exhibit have COVID-19, employers should inform must be cognizant of potential health risks
flu-like symptoms in the workplace, but other employees about their potential posed by certain employees and implement
may not make such inquiries to employees exposure to the virus, but the identity
who work remotely or do not come into
contact with other employees as part of
their job description.

Relying on the CDC’s recommendations for Employees who exhibit flu-related symptoms
employers amidst the COVID-19 pandemic, can and should be sent home immediately
employers may screen and examine
employees to ensure the health and safety of and prohibited from returning to work until
others in the workplace. The CDC suggests
that employees should be screened if (a) they are symptom-free for at least 24 hours.
they are exhibiting flu-like symptoms such
as fever, dry cough, shortness of breath, etc.;
(b) the employee recently returned from

www.ieci.org | May/June 2020 | Insights Magazine 39