A.7. The CDC stated in its preliminary guidance that antibody test results « should not be used to make decisions about people`s return to work. » In light of these CDC guidelines, can an employer require antibody testing under the ADA before allowing employees to return to the workplace? (17.06.20) No. The data protection rule does not apply to employment records, including employment records of covered entities19 and business partners20 acting in their capacity as employers.21 Therefore, the data protection rule generally does not govern the information that may be requested from employees under the terms and conditions of employment that a company or a covered business partner may impose on its employees. 22 such as the ability of an entity or business partner23 to require its employees to provide documentation attesting to their COVID-19 vaccination or to disclose to their employer, other employees, patients or members of the public if they have been vaccinated. Yes. At least one state (Montana) has banned job conditioning or other discrimination based on vaccination status, and others are considering similar laws. Since state and local laws regarding vaccinations change rapidly, employers should consult with the local employment counselor to determine if there are any state or local laws that prohibit them from making vaccinations mandatory. « It`s a rapidly changing environment, » Riga said. Federal, state, and local agencies regularly adjust their COVID-19 requirements, which can impact the business reasons an employer needs to know an employee`s vaccination status. According to Title VII, an employer should consider all reasonable accommodations that would impose only a minor burden on the employer if an employee refuses to be vaccinated on the basis of a sincerely held religious belief. This de minimis standard is a lower threshold and therefore easier for an employer to set than the unreasonable hardship standard applicable to disability-related accommodations under the ADA. If the employer is concerned that the employee`s health will be compromised upon their return to work, the ADA does not allow the employer to exclude the employee — or take other adverse action — simply because the employee has a disability that the CDC identifies as potentially « higher risk of severe illness » if they contract COVID-19.

Under the ADA, such a measure is not permitted unless the employee`s disability poses a « direct threat » to their health that cannot be eliminated or reduced by reasonable precautions. The ADA does not interfere with a designated employer representative interviewing the employee to obtain a list of individuals with whom the employee may have been in contact in the workplace so that the employer can then take steps to inform those who may have been in contact with the employee without revealing the employee`s identity. Using a general descriptor, such as informing employees that « someone in this place » or « someone on the fourth floor » has COVID-19, informs and does not violate the ADA`s prohibition on disclosing confidential medical information. For small employers, employees may be able to know who the employee is, but employers in this situation are still prohibited from confirming or revealing the identity of the employee. In addition, all employer officials who need to know the identity of an employee should be given explicit instructions to respect the confidentiality of this information. Employers may want to plan ahead for what supervisors and managers should do when this situation arises and determine who is responsible for receiving the information and next steps. A.5. When employees return to work, does the ADA allow employers to require a medical certificate attesting to fitness for duty? (17.03.20) Yes. The recruitment agency or contractor may notify the employer and disclose the employee`s name, as the employer may need to determine if the employee has had contact with anyone in the workplace. As with any accommodation request, employers can: ask questions to determine if it is a disability; Discuss with the employee how the requested accommodations would help them and allow them to continue working; explore other accommodation measures that can effectively meet their needs; and request medical records if necessary. In general, measuring an employee`s body temperature is a medical examination.

Since the CDC and local/state health authorities have recognized the spread of COVID-19 in the community and have put in place the appropriate precautions, employers can measure employees` body temperatures. However, employers should be aware that some people with COVID-19 do not have a fever. If an employee certifies that they cannot be vaccinated due to a disability, the employer must take reasonable precautions, such as wearing a mask, improving cleaning, social distancing, working remotely, frequent testing, and even job changes, as long as these accommodations do not cause undue hardship (require significant hardship or cost) and the unvaccinated worker does not pose a « direct threat. » A worker`s disability poses a direct threat if, even in the context of accommodation, it poses a significant risk of significant harm to the health or safety of the worker or others that cannot be eliminated or reduced by reasonable accommodation. D.P. What practical tools do employers have to reduce and address workplace harassment that may occur as a result of the COVID-19 pandemic? (09.04.20) A.6. Can an employer conduct a COVID-19 test (a COVID-19 virus test) when assessing an employee`s initial or ongoing presence in the workplace? (4/23/20; updated 9/8/20 to answer questions from stakeholders on updates to CDC guidance) E.2. Are there steps an employer should take to address potential harassment and discrimination against employees when the workplace reopens? (17.04.20) H.2. If an employer chooses to offer flexibility to other workers, can older comparable workers be treated less favourably because of their age? (08.09.20; adapted from question 12 of the webinar of 27.03.20) Even if an employer determines that an employee`s disability poses a direct threat to their own health, they cannot exclude the employee from the workplace or take other adverse measures unless there is no way to provide reasonable accommodation (short of undue hardship).