As states begin easing COVID-19 restrictions and allowing employees to return to work, both employers and workers are reckoning with countless new concerns the return to normalcy presents.

For employees, the questions focus largely on safety. What if I catch the virus from an asymptomatic coworker? Why is my coworker coughing? Do I still have to come in if I’m immunosuppressed? What is my employer doing to ensure my safety? For employers, the questions center on liability. Can we be held liable if an employee catches the virus at work? Can we prohibit employees from coming to work if they’re sick? Can we make them tell us if they’re sick? Can we allow elderly workers and workers with underlying health conditions to continue telecommuting? What counts as an underlying condition, and can we require employees to prove they have it?

In recent weeks, the Equal Employment Opportunity Commission (“EEOC”) has issued a series of guidelines addressing all these questions and more. According to the EEOC’s guidance, until the pandemic is over, employers covered by the Americans with Disabilities Act (“ADA”) can ask employees if they have any symptoms of COVID-19 before allowing them into the workplace. This means employers can ask employees if they have a cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, or loss of smell and taste. Perhaps more embarrassing for everyone involved, employers can also inquire into gastrointestinal issues like nausea, diarrhea, and vomiting. Employers can also require employees to submit to temperature tests to determine whether they have a fever.

On April 23, 2020, the EEOC issued new guidance expressly allowing employers to administer COVID-19 tests to employees before permitting them to enter the workplace. Pursuant to the ADA, mandatory medical tests of employees must be “job related and consistent with business necessity.” The EEOC has interpreted this requirement to mean that employers can take steps to determine whether employees have COVID-19 since an employee who has the virus poses a direct and immediate threat to the health and safety of other employees in the workplace. What this means in practice: employers can now swab employees before allowing them to enter the workplace. Employers who choose to administer COVID-19 tests to employees are reminded that this is not a substitute for continuing to implement strict infection control policies in the workplace.

Employers who collect information about their employees’ health and symptoms, including the results of COVID-19 tests, must maintain such information in a confidential medical record that complies with ADA requirements. The record must be maintained in a separate medical file that is not part of the employee’s regular personnel file. Employers who collect such information but fail to maintain it in a separate and confidential file are subjecting themselves to liability under the ADA.

There is no question that workers will not look forward to getting a swab test from their boss after a long commute to work. However, the decision is not up to the employees. The onus falls on employers to determine whether the costs and potential liabilities of administering swab tests are greater or lesser than the liability they may face for failing to protect their workforces from the virus.

Employers with questions about the new guidance are encouraged to reach out to Erica L. Litovitz, Esq. or another member of Jackson & Campbell’s Employment Law Practice Group.