How To Protect Your Employees As We Return To The “New Normal”

California appears to be stretching its legs and slowly awakening from the COVID-19 hibernation. As more employers reopen their doors, they must thoughtfully consider how they can keep their employees safe as we move forward into fighting the next battle in the war against the novel corona virus. However, one recent survey found that 73% of respondents had yet to decide on a “return to work” plan and about 56% of business are still only in the beginning stages of putting a strategy together.

The most effective way for an employer to keep its workplace safe is to encourage open lines of communication. Strongly encourage your employees to report symptoms and if they feel unwell. Any employees who present with respiratory symptoms should be sent home immediately and provided with necessary sick time or the ability to work from home, if appropriate. Written authorization from the employee’s healthcare provider should be required before allowing the employee to return to work. You will also need to notify any remaining employees of possible exposure (ideally in writing). This should all be done while maintaining strict confidentiality of the infected employee’s name, symptoms, and diagnosis to ensure compliance with medical information privacy or disability discrimination laws. This requires careful maneuvering with your HR, legal, and medical professionals to ensure that the employer and employees are appropriately protected.

However … can an employer try to get in front of a possible outbreak by requiring mandatory testing of its employees? The EEOC recently said they can. On March 18, 2020, the EEOC gave the greenlight on taking employees’ temperatures before allowing access to the workplace. On April 23, 20202, the EEOC issued new guidance to employers that permits mandatory testing of employees for the presence of the COVID-19 virus. The guidance came with a few cautions:

  • Employers should ensure the tests are accurate and reliable.
  • Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
  • Employers are reminded that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.
  • Employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
  • Employers need to remember that the ADA requires all medical information about employees must be stored separately from their personnel file and access to this confidential information must be strictly limited.

A few of our own caveats: any medical screening for COVID-19 must be conducted on a nondiscriminatory basis, which likely means that all employees entering the worksite must be tested. Employers should also be aware that there may be an obligation under wage and hour laws to pay employees for time waiting to be tested, as well as waiting for test results.

These are unsettling times on a historic scale - perhaps more so for employers. Medical professionals are on the frontlines of COVID-19 but employers are in the trenches as the economy faces a huge shock wave from this epidemic. As we all learn how to navigate these new waters, employers are faced with more questions than answers are readily-available. More than anything, employees need your leadership. Rest assured that Hall Griffin is here to partner with you during these extraordinary times. For more information or to discuss any of your employment concerns, please contact our employment attorneys at Hall Griffin LLP.


Stephanie M. Stringer, Esq
John A. Cone, Jr., Esq

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