During the COVID-19 pandemic, how much information may an employer request from employees who report feeling ill at work?
According to guidance from California’s Department of Fair Employment and Housing (DFEH), employers may ask employees if they are experiencing symptoms consistent with COVID-19 (cough, fever, or shortness of breath). Any medical information obtained from employees must be kept confidential as a medical record and separately from the employee’s personnel file.
2 May employers require employees to report a diagnosis of COVID-19?
Likely yes. While the DFEH has not explicitly approved asking for this information and employers should typically avoid asking questions about an employee’s health condition, in light of the exigent circumstances and the highly contagious nature of COVID-19, employers may be able to require employees to report if they test positive for COVID-19, or if the employee has been in close contact with someone who has tested positive for COVID-19.
3 May an employer conduct COVID-19 testing on its employees before permitting employees to enter the
The EEOC guidance has explicitly approved COVID-19 testing by employers. However, the DFEH has not yet issued guidance addressing the same issue. If an employer is planning on testing its California employees, employers should ensure that the tests are accurate and reliable based on guidance from the FDA, CDC, or other public health authorities. Any information from COVID-19 testing should be kept confidential and separate from an employee’s personnel file to limit access to the medical information.
Employers should also keep in mind that a test reveals only whether the virus is present at the time of the test and is not indicative of whether the employee will contract the virus later. Even if testing is implemented, employers should continue to require infection control practices consistent with guidance from public health officials to prevent the transmission of COVID-19.
May employers in California take employees’ temperatures to determine whether they have a fever?
Yes. According to recent guidance from the DFEH, while taking an employee’s temperature is typically a medical examination that should only be conducted in limited circumstances, based on guidance from the CDC and local public health information and guidance, employers may measure employees’ body temperature for the limited purpose of evaluating the risk of that employee’s presence in the workplace may pose to others as a result of the COVID-19 pandemic.
5 May employers in California take job applicants’ temperatures to determine whether they have a fever?
Most likely yes once an offer of employment has been made. California’s Fair Employment and Housing Act (FEHA) allows employers to require a medical examination or make a medical inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment as long as: 1) the examination or inquiry is job related and consistent with business necessity; and 2) all entering employees in the same job classification are subject to the same examination or inquiry. While the DFEH’s guidance is not specific to pre-employment temperature checks, the same reasoning (preventing the spread of COVID-19 based on CDC guidance) applies to pre-employment temperature checks.