By now, more than just those businesses deemed “essential” by the government have been allowed to re-open. As more businesses open, more employment questions arise.
Of course, all employers want to protect all of their employees and customers by precluding COVID-19 from the workplace. Similarly, though, employers must also honor state and federal laws concerning employee rights.
During this pandemic, as explained below, as our federal and state health instructions and guidelines change, the law is designed to flex and adapt to reflect those ever-changing federal and state health instructions and guidelines.
For employees who are at work, there are some common understandings that employees and employers can recognize in order to ensure that neither employers nor employees are overstepping their respective boundaries at this time. Many laws only technically apply to employers with 15 or more employees, but all employers are advised to follow the best practices.
Initially, nobody really knows what the presence of COVID-19 antibodies really means. For instance, has the person had the virus? Is the person immune? Is the person contagious? As a result, employers cannot require COVID-19 antibody testing for employees due to the test’s irrelevance.
Generally, anyway, employers may not conduct medical examinations of employees. However, due to this pandemic, there are exceptions to this general rule for testing for COVID-19 and its symptoms.
Taking employee body temperatures is considered a medical exam under the law, but high body temperatures have been (but are not always) correlated with COVID-19. Therefore, employers may require that employee temperatures be taken, but the employer must keep the body temperatures confidential. If an employee has a high temperature, the employer may preclude the employee from working.
Similar to taking body temperatures, employers may also ask employees whether employees have other symptoms associated with COVID-19, and the list of symptoms about which the employer can inquire changes as the symptoms associated with Covid-19 are updated by medical professionals.
Thus, for now, employers can certainly ask about whether employees have a cough, shortness of breath or sore throat and send home employees who exhibit those symptoms. Of course, employers must strictly keep confidential the answers to the questions about symptoms.
Because of the government’s classification of COVID-19 as a major health threat to others, employers may require employees at work to wear facemasks, practice social distancing and regularly wash their hands.
Some employees are unable to exercise their employers’ disease transmission minimization practices due to employees’ certain medical conditions. In such circumstances, the employer is required to make a reasonable accommodation for the employee if the accommodation is not an undue hardship on the employer.
For example, an employee may be unable to wear a facemask due to the employee’s asthma. If it will not cause an undue hardship on the employer (i.e. as long as the employee can still get the employee’s specific work completed timely and properly), the employer may be required to relocate the employee to an isolated area enclosed in plexiglass instead of requiring a facemask.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.