As more people across the state return to work, employers face a growing conflict. On the one hand, employers are legally obligated to provide a safe workplace. On the other, they’re required to respect and protect the privacy of their workers. It’s always been a delicate balance, but in the age of COVID-19, the two interests utterly collide.
Employers obligated to stop employees from spreading COVID-19
Since the new coronavirus first made headlines in China, data has been fundamental to stifling its spread. Who’s traveled where? Who’s been with whom? Who has a body temperature exceeding 100.4°? Now, as we congregate in workplaces across Wisconsin, these questions linger. But just how far can an employer go when seeking — and sharing — answers to keep everyone safe?
The COVID-19 questions employers have (and to which ones must employees respond)
Following is a list of questions that many employers have, along with the do’s and don’ts accompanying them.
May I take employees’ temperature when they arrive?
For the purposes of the COVID-19 era, taking employee temperatures is allowed because of relaxed Equal Employment Opportunity Commission regulations. For this policy, and most all policies, the policies should be implemented uniformly to employees. The EEOC and other governmental agencies emphasize that not all COVID-19-positive individuals will have a fever; therefore, the value of the testing is limited.
When employees travel, can I ask them where they’ve been? Can I require them to quarantine for two weeks before returning to work?
Yes, you can ask employees where they have travelled. However, the quarantine question is more complicated. If an employee has traveled abroad or to an area known to be high risk for COVID-19, the answer is yes. If an employee traveled to a low-risk area, the answer is “maybe.” The CDC provides a risk assessment measure for healthcare workers that can be adapted for use in other workplaces to determine whether a quarantine is necessary. Alternatively, if the employer is willing to pay the employee to work from home while quarantined, there would be no damages for the employee to allege against the employer.
Can I require employees to tell me if they test positive for COVID-19?
Can I tell employees when a coworker has tested positive for COVID-19?
You can tell employees that somebody has tested positive — you may not give the name. In small office environments, employees may be able to figure out who it is. But employers should not give that information to other employees.
Can I require employees to report if they’ve been in contact with someone who tested positive for COVID-19?
Can I require employees to wear face masks?
Yes. Employers may require employees to wear protective gear, such as face masks and gloves. If an employee has an underlying health issue that makes protective gear impossible, reasonable accommodations may need to be made.
Must I require all employees to maintain 6 feet of social distance?
If you’re in an industry or in a municipality that requires social distancing, then yes. But in many circumstances, and in most Wisconsin counties, social distancing is encouraged, not required. In those conditions, an employer is not required to enforce six feet of distancing. If you have a social distancing policy, however, you should enforce it.
Can I require an employee to be tested?
This issue is less clear cut. If an employee presents with COVID-19 symptoms, they should be sent home. Employers can require an employee to provide a health care provider “fitness for duty” certification.
Can I require employees to travel for work?
Yes. If travel is a part of the employee’s performance expectations, the employer can hold the employee to his/her job duties. However, if an employee is reluctant to assume those duties, it may be worth considering whether reasonable accommodations (i.e. teleconferences in lieu of in-person conferences) are acceptable in the current environment.
If an employee gets COVID-19, can I keep my business open?
This is a matter on which you should rely on the local health department because it varies by business. In certain scenarios, a temporary shutdown may be necessary. In other scenarios, shutting down portions of the business that are impacted may be sufficient.
Put your COVID-19 rules in writing
As you decide the rules you’ll enforce in your workplace, put them in writing. You then have a document that spells out the guidelines for everyone the same way. Then be sure to communicate the rules to your entire workforce and add them to your crisis planning documents or employment policy.
Apply COVID-19 workplace rules consistently
One of the most critical points in working with employees regarding COVID-19 is to treat everyone the same. If you ask one employee to go home when their temperature is 100.1°, then you need to ask everyone else whose temperature hits that mark to go home as well. Likewise, if you require people working at check-out registers to wear face masks, you must require everyone interacting with customers to wear them as well. Any inconsistency in implementing your rules exposes you to discrimination claims.
If an employer puts rules into place and consistently applies those rules to all employees equally, the employer will be more likely to avoid potential liability. Making certain exceptions without justification or failing to apply a written policy makes the written policy useless.
An employment law attorney can help
If you need help creating COVID-19 rules or updating your employment policy to match the current times, an attorney who concentrates in employment law can help. They can ensure compliance with all federal, state and local guidelines, as well as advise you regarding work from home, family care and sick leave policies.