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Employees’ Medical Privacy Rights In St. Louis County During COVID-19

Posted by Anthony Bretz | Apr 29, 2020 | 0 Comments

With local governments discussing plans for a phased end to the stay-at-home orders, many employees will be returning to businesses in St. Louis County, Missouri.  Many of you may be wondering what to expect when you return to work and what privacy rights to your medical condition do you have during the COVID-19 Pandemic?  The Equal Employment Opportunity Commission (EEOC) has recently issued guidance updated for COVID-19 to help answer these questions.

The Americans With Disability Act and Medical Exams

The Americans with Disability Act (ADA) protects the rights of employees with disabilities, or other medical issues, from being asked about their personal medical history by either a prospective or current employer. However, during certain times the ADA's usual restrictions may not apply. Once such time may be during a pandemic.

In its updated guidelines, the EEOC has unequivocally stated that the COVID-19 pandemic is one such event where the ADA's barring of employers from asking employees about their medical conditions is not fully enforceable. There are still limitations and the employers must continue to maintain confidential medical records separate and distinct from any personnel files.

The EEOC has addressed the following most common and likely questions that will arise during the COVID-19 pandemic as it pertains to businesses which are covered under the ADA:

  1. How much information may an employer request from an employee who calls in sick?
  2. When screening employees entering the workplace are employers limited to asking employees only about COVID-19 symptoms?
  3. When may an employer covered by the ADA take the temperature of employees?
  4. Can an employer require an employee with COVID-19 symptoms to stay home?
  5. When employees return to work can their employer require a doctor's note?
  6. Can an employer administer a COVID-19 test before allowing employees to reenter the workplace?
  1. How much information may an employer request from an employee who calls in sick?

When an employee calls in sick or has missed work without explanation, an employer is permitted to ask whether the employee has been or is experiencing any COVD-19 related symptoms.  These symptoms include fever, chills, repeated shaking with chills, muscle pain, headache, coughing, sore throat, new loss of taste or smell, or shortness of breath.  The CDC is frequently reevaluating the list of known symptoms as we learn more about his disease and how it may present.

It is important to note that even though the employer is allowed to ask these questions, all information obtained about an employee's illness must continue to be confidentially maintained in compliance with the ADA.

  1. When screening employees entering the workplace are employers limited to asking employees only about COVID-19 symptoms?

Due to the expanding list of COVID-19 symptoms, the main criteria limiting those symptoms which your employer may ask you about is whether they would indicate that you or a coworker might be a direct threat to the health and well-being of those in the workplace. Additionally, the CDC and other public health authorities, as well as trusted medical sources, should be referred to by employers for guidance.

As an employee your rights under the ADA are not necessarily violated by an employer asking you about COVID-19 related symptoms, or additional symptoms that may be indicate the presence of an employee who may be a direct threat to the health of the workplace.

  1. May an employer take the temperature of employees?

Normally, the taking of an employee's temperature is a medical examination and is limited by the ADA.  However, if a pandemic illness becomes widespread in the community, such as COVID-19 has, then employers may check the body temperatures of their employees. 

It is important to note though that many individuals with COVID-19 will present asymptomatically, and therefore they may not have a fever.

  1. Can an employer require an employee with COVID-19 symptoms to stay home?

Yes. Due to the acknowledgement of community spread of COVID-19, an employer may require an employee with COVID-19 to stay home.  This is permissible as having COVID-19 qualifies as an employee, if in the workplace, to be a direct threat to the health and well-being of the workplace.

  1. When employees return to work can their employer require a doctor's note?

Yes. Again, due to the acknowledgement of community spread of COVID-19, an employer may require an employee who has had COVID-19, or possibly been in contact with someone who has had COVID-19, to obtain a doctor's note certifying their fitness for duty.  This is permissible since it is not a disability-related inquiry.

Of course, during a pandemic, especially COVID-19, most doctors may be too busy to provide such notes.

  1. Can an employer administer a COVID-19 test before allowing employees to reenter the workplace?

The short answer is yes, an employer may administer a COVID-19 test to employees before allowing them to reenter the workplace.  Of course, these tests must still be administered in compliance with ADA standards. Additionally, any results will need to be maintained confidentially.

Employers should take steps to ensure that the tests administered are not only safe and accurate, but also that they are accurately administered.  Also, as with all tests there will be false-negatives and false-positives. The EEOC warns that tests are limited to telling you whether someone presently has the virus.  A person who does not have it now may still contract it later.

Though many are excited at the prospect of being able to return to work and get out of their houses, it is still important that steps being taken to limit social interactions in order to continue to flatten the curve.  The EEOC cautions that “based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular hand washing, and other measures) in the workplace to prevent transmission of COVID-19.”

And as always, it is best practice to be aware of your rights as an employee in the workplace. Though the circumstances of COVID-19 have eased some of the ADA's restrictions on employers you still have privacy rights when it comes to your medical information.  

If you feel that your rights under the ADA, or federal and state laws, have been violated and you have suffered discrimination by your employer, please contact our firm now to discuss your options.

*The choice of a lawyer is an important decision and should not be based solely upon advertisements.

About the Author

Anthony Bretz

Anthony S. Bretz is an experienced and dedicated trial attorney specializing in DWI, DUI, Criminal Defense and Employment Discrimination cases. A St. Louis native, he went to McCluer North High School in Florissant where he played football and wrestled. After graduating in 2000, he attended Truman State ...

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