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With the COVID-19 threat at pandemic levels, employers are concerned about their ability to inquire about an employee’s potential virus exposure and health status. Employers should be cautious with these inquiries. Given the international scope of the virus and directives from national, state and local governments, it is reasonable for employers to make more than the usual inquiries of their workforce and to consider what actions may be taken to ensure workplace safety.     

As a starting point, employers are prohibited from seeking medical information from employees, except in limited situations. Employers should become familiar with and follow the guidance of the Equal Employment Opportunity Commission (EEOC). The following actions are permissible in most cases:

  • If an employee (or visitor to the workplace) tests positive for COVID-19, the employer should notify persons who may have come into contact with that person and advise them of the situation so they can seek appropriate medical advice. Employees who worked closely with that employee and are at high risk of exposure should be sent home for a quarantine period of at least 14-days to avoid spread of the infection. Most important, the employee’s identity should remain anonymous. Employers should never identify by name the infected employee without the employee’s express permission.  Gossip surrounding employee absences should also be discouraged.
  • Employers may ask employees if they are experiencing symptoms of COVID-19, such as cough, sore throat, shortness of breath, fever, or chills, but all such information must be treated as personal health information and handled as a confidential medical record.
  • Instruct employees who remain in the workplace on the importance of maintaining proper cleanliness and sanitation and limit in-person meetings and other personnel gatherings and interactions. Employers should also consider the best way to sanitize a work area if a person who tests positive with COVID-19 has been in the building.

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Luis F. Ruiz

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