Building Readiness: Planning, Prevention, Response, and Liability
1. Can we screen employees for symptoms of COVID-19 prior to their returning to work?***
Yes, the U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance and updated information concerning the screening of employees for symptoms of COVID-19. Because the CDC and state and local health officials have acknowledged community spread of COVID-19, employers can screen employees for symptoms and the COVID-19 virus before they return to the workplace. Recently updated EEOC guidance clarified that employees found to have COVID-19 or symptoms associated with COVID-19 may be excluded from the workplace. In general, however, employers cannot ask for this information from employees who are working remotely. This guidance is applicable during the COVID-19 pandemic and may change if current transmission patterns shift, and we expect that the EEOC would update its guidance accordingly at that time. Screenings could include:
Temperature checks. Employers may conduct temperature checks of employees entering the workplace using a number of different methods, including thermal cameras and infrared devices, which may be handheld or wall-mounted. Any such temperature checks must be administered in a non-discriminatory way. If your CAA is renting space in a building, you should check your lease and discuss with your landlord whether you can set up testing equipment or conduct screening in a common area of the building. Information obtained from these checks must be kept confidential. Protocols should be in place outlining additional steps to take should an employee have a high temperature. It’s important to note that since COVID-19 can be spread by those who are asymptomatic, temperature screenings alone will not definitely stop or prevent the virus. However, screenings, coupled with other preventive measures, may serve as a useful tool in a CAA’s efforts to safely operate in-person workplaces.
COVID-19 tests. The EEOC has clarified that employers may test employees for active COVID-19 to determine whether an employee entering the workplace has the virus. Any CAA should weigh the pros and cons of doing so, such as the prevalence of COVID-19 in the community, the reliability and availability of such tests, the time and resources involved, and procedures for conducting tests. Updated CDC guidance lists several suggested approaches to testing employees for COVID-19, including initial testing of all workers before entering a workplace, periodic testing of workers at regular intervals, targeted testing of new workers or those returning from a prolonged absence such as medical leave or furlough, or some combination of approaches. To determine how frequently to conduct COVID-19 testing, CAAs should consider factors such as the availability of testing, results of any previous testing, and level of community transmission.
Similar to temperature checks, COVID-19 tests should be conducted in a non-discriminatory way, and protocols should be in place with steps to take should an employee test positive. While employers may test for the active virus, the EEOC has said that employers may not require employees to take COVID-19 antibody tests prior to returning to the workplace.
Fitness-for-duty exams. Employers may require that returning employees obtain fitness-for-duty exams. The EEOC has cautioned, however, that an employee’s ability to get a fitness-for-duty exam from a healthcare professional could be limited during the pandemic. The EEOC suggests exploring new approaches to such exams, such as relying on local clinics to provide a form, stamp, or e-mail to certify that an individual does not have the virus.
Symptom questionnaires. Employers are allowed to ask employees who are physically working onsite to complete symptom questionnaires, but must focus questions on the symptoms of COVID-19 that have been identified by the CDC and other state and local public health agencies. According to the EEOC, employers are not allowed to ask employees who are coming into the workplace medical questions about their family members, either on symptom questionnaires or otherwise. However, employers may ask employees if they have been in contact with anyone diagnosed with COVID-19 or who had symptoms associated with the virus. Questions that are overly broad or that solicit general medical information related to an employee’s health or a disability could violate the ADA and subject employers to liability. See, for example, COVID-19 Sample Employee Questionnaire from Fisher Phillips.
2. What if an employee refuses COVID-19 screenings or tests?**
An employer may deny an employee entrance into the workplace if that employee refuses to be screened for COVID-19 or symptoms associated with it, or answer questions related to it. An employer may try to discuss with that employee the reasons for the refusal and share information about or reasons for such screenings and how they relate to promoting public health or a healthy workplace. An employer may also communicate its obligations under the ADA to maintain the confidentiality of medical information shared with the employer. An employee may request reasonable accommodation with regard to screenings. If an employer receives such a request, it should follow its normal reasonable accommodation procedures.
3. When conducting screenings at work, do we need to pay non-exempt employees for wait times?
Yes. Whether you are conducting COVID-19 screenings of employees prior to entering the building or throughout the workday, non-exempt employees must be paid for any wait times associated with those screenings, as well as any follow-up examinations based on the screening results. If your CAA conducts COVID-19 testing at work, the process should be as efficient and timely as possible.
4. Who will have access to results of temperature checks and other screening results?
Results of temperature checks, COVID-19 tests, and other medical information obtained by employers should be treated as confidential, with disclosure limited to supervisors and managers regarding necessary restrictions on the work of an employee and necessary accommodations; first aid and safety personnel in the event of an emergency related to the condition/disability; and government officials investigating Americans with Disabilities Act (ADA) compliance. See 29 C.F.R. § 1630.14(c)(1)(i-iii). Your CAA must ensure that any information collected from screening is stored in compliance with the ADA, Genetic Information Nondiscrimination Act, and other data privacy and confidentiality requirements. Consider implementing or adjusting record retention and data privacy policies to protect the confidentiality of this information. See also Response Question 7.
5. Can we require employees to wear a mask?***
Yes, employers may require that employees wear masks, as well as other PPE, while they are in the workplace. Indeed, updated CDC guidance recommends that employers ensure that all employees wear masks in the workplace, consistent with CDC and OSHA guidelines as well as state and local requirements. Further, if the employer has determined that masks or other PPE are necessary for workplace safety, OSHA has clarified that the employer must provide employees with PPE and with training on its proper and effective use.
Even if a properly-conducted hazard assessment determines that PPE is not necessary to protect employees, the CDC still recommends ensuring that employees wear masks pursuant to the guidelines and requirements mentioned above. To clarify expectations about the use of PPE in the workplace, CAAs should consider implementing a PPE policy for the duration of the COVID-19 pandemic. Just make sure that such a policy, if implemented, is enforced in a consistent, non-discriminatory way.
CAAs should carefully consider the types of PPE they might require employees to wear while in the workplace. For example, CAAs might not want to require the use of N-95 masks in the workplace because of limited supplies and the need to have them available for health care providers and first responders. In addition, N-95 masks are considered “respirators” under OSHA standards, and employers are required to conduct fit-testing of all respirators that they require employees to wear in the workplace. Alternatively, cloth masks are not subject to fit-test or other medical questionnaire requirements.
An employee who refuses to wear a mask because of a disability is still entitled to reasonable accommodation, unless an accommodation would cause the employer undue hardship. If, for some reason, the employee is unable to wear a mask, the employer and employee should communicate and determine if a reasonable accommodation exists, pursuant to ADA requirements and EEOC Enforcement Guidance.
6. Can employees refuse to return to work because of fear of contracting COVID-19?
Likely not. Under the Occupational Safety and Health Act (OSHA) § 13(a), employees can only refuse to work if they believe they are in “imminent danger,” which includes the “threat of death or serious physical harm” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” Requiring employees to work in close contact with populations likely to have COVID-19 without personal protective equipment (PPE) could rise to the level of “imminent danger.” However, at this point in time, most work conditions in the United States likely do not meet the standard required for an employee to refuse to work. However, you should continue to monitor your workplace circumstances and regularly communicate with your employees to discuss their concerns.
If employees refuse to work because they are scared of contracting COVID-19, your CAA should follow its policies and act consistently. Many CAAs’ policies address unpaid administrative leave, paid vacation or PTO, furloughs, or reasons for termination. There are no federal laws obligating an employer to provide paid vacation leave or PTO. Your CAA must consult with local counsel regarding state laws that may govern such leave. Fear of contracting the virus is also not a qualifying reason to take Emergency Paid Sick Leave or Emergency FMLA Leave under the Families First Coronavirus Response Act. This applies equally to employees over the age of 65 who might be at a higher risk due to COVID-19.
7. Are specific cleaning measures required in the workplace during the pandemic?***
Employers should clean and disinfect the workplace consistent with CDC guidance on Cleaning and Disinfecting Your Facility as well as updated OSHA sanitation guidance. While neither the CDC’s guidance nor OSHA’s guidelines on cleaning are required, following these measures will help reassure your employees that it is safe to be in the workplace, and will also help protect your CAA from liability for claims of exposure to COVID-19 in your facilities.
8. Should we make any changes to our ventilation systems?***
The CDC’s Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 suggests that employers consider assessing and improving, if necessary, their building ventilation systems. This may include some or all of the following activities:
- Increase ventilation rates.
- Ensure ventilation systems operate properly and provide acceptable indoor air quality for the current occupancy level for each space.
- Increase outdoor air ventilation, using caution in highly polluted areas.
- Disable demand-controlled ventilation.
- Further open minimum outdoor air dampers (as high as 100%) to reduce or eliminate recirculation, as appropriate, based on outdoor air temperatures.
- Improve central air filtration to the MERV-13 or the highest compatible with the filter rack, and seal edges of the filter to limit bypass.
- Check filters to ensure they are within service life and appropriately installed.
- Keep systems running longer hours, 24/7 if possible, to enhance air exchanges in the building space.
Some of the above recommendations are based on the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Guidance for Building Operations During the COVID-19 Pandemic. OSHA has also issued updated non-binding guidance recommending improving ventilation in indoor workplaces, and providing a list of strategies tor doing so. A CAA should involve its Facilities Manager or Building Supervisor to review these ASHRAE guidelines on ventilation recommendations. CAAs that rent space should also consult their lease agreements and discuss these suggestions with their landlord.
9. Do we need to mandate social distancing in the workplace?***
Maybe. Your CAA should consult state and local policy, requirements, and orders in your area to determine if any such social distancing mandate applies or is recommended. If so, consult applicable public health authorities’ guidance when planning how best to socially distance in the workplace. Whether required or not, there are a number of ways to encourage social distancing to try and limit the spread of COVID-19. CDC guidance can help employers operating in-person workplaces think through specific workplace social distancing strategies to implement. These may include:
- Staggering schedules and work shifts to limit the number of employees in the workplace at any one time.
- Installing physical barriers between workstations and high traffic areas, or where communication between employees and clients occurs, such as a front desk.
- Changing workspace layouts to keep employees at a specified distance or away from higher traffic areas.
- Encouraging telework where possible. Employers should encourage employees to work from home and stay flexible so that employees can both stay and home and work productively. Having a telework policy in place can help your CAA approach and apply telework practices in a consistent manner to all employees.
- Implementing flexible meeting and travel options (e.g., postpone non-essential meetings or events in accordance with state and local regulations and guidance).
- Closing or limiting access to common areas where employees are likely to congregate and interact.
- Prohibiting handshaking.
- Delivering services remotely (e.g., phone, video, or web).
- Adjusting operational practices to reduce close contact with clients and visitors—for example, by providing online intake forms and processes, where feasible.
10. How should we revise travel policies to reflect new pandemic-related restrictions?*
Your CAA should ensure that travel policies reflect the current realities related to COVID-19 and adhere to the local, state, and national travel restrictions in place. In general, during the pandemic employers should carefully consider the necessity of business travel. Your CAA might choose to define essential and non-essential travel, and restrict travel accordingly. The CDC offers information and considerations that your CAA can use when making decisions related to travel in the U.S. during the pandemic.
While an employer cannot prevent its employees from engaging in personal travel, it may require employees to inform their supervisor or the Human Resources department about upcoming travel plans. Depending on the location of the travel and the impacts of COVID-19 in that area, quarantine procedures may be required to keep the employee away from the workplace upon their return.
If your employee does travel during the pandemic, whether for business or personal reasons, you may ask them upon their return where they traveled and about their exposure to COVID-19 during the trip, and follow the guidance of local and state authorities regarding when they may return to work, and if any quarantine requirements apply. The EEOC has clarified that employers do not have to wait until the employee develops COVID-19 symptoms to ask questions about where the person has traveled, as these are not disability-related inquiries under the ADA.
11. Can we screen clients for symptoms of COVID-19 or test them for the virus?
Likely yes, though the ability to screen clients and others who enter your facilities will be governed by your state laws and, in particular, privacy laws that establish an individual’s right to privacy. You should consult with local counsel to ensure compliance with those laws, but, generally, an individual’s right to privacy significantly diminishes in public spaces and, with respect to COVID-19 screenings at this time, the need to ensure the public’s health and safety in public spaces will likely outweigh an individual’s reasonable expectation of privacy.
Screening devices may be handheld or wall-mounted technology that measure body temperature, including thermal cameras and infrared devices. Screenings should be conducted in a manner that is consistent, non-discriminatory and as non-invasive as possible. Similar to an employer screening employees for symptoms of the virus, your CAA should determine the most appropriate and safest location to screen those entering CAA facilities and maintain the confidentiality of the results. Privacy-related liability issues associated with screenings are also addressed in Liability Question 13.
It’s important to note that, since COVID-19 can be spread by those who are asymptomatic, temperature screenings alone will not definitely stop or prevent the virus. However, screenings, coupled with other preventive measures, may serve as a useful tool in a CAA’s efforts to safely reopen.
12. Can we delay services to clients who exhibit symptoms of COVID-19 or test positive?
Likely yes, but CAAs should first consult with their funding sources. CAAs are required by law to protect the health and safety of employees and clients, which may result in a temporary delay in providing services. Given the essential nature of the services that CAAs provide, they should consider other ways in which such clients could be safely served. For additional guidance on the COVID-19 response by CSBG eligible entities, see CSBG-IM-2020-157 and for CAAs with Head Start programs see COVID-19 & the Head Start Community.
13. What should we do about employees with underlying medical conditions?
The CDC has identified a number of underlying medical conditions that put people at higher risk for severe illness from COVID-19. According to the EEOC, employees with the identified medical conditions may request reasonable accommodation, pursuant to the ADA requirements and EEOC Enforcement Guidance.
If a higher risk employee with a medical condition does not request accommodation, an employer does not need to offer any. Note, however, that an employee does not need to use the phrase “reasonable accommodation” or mention the ADA; the employee must simply let the employer know that he/she needs an adjustment or change at work for a reason related to a medical condition. If the employer has concerns about the higher risk employee with a medical condition, the employer may exclude the employee from the workplace only if it can show that the employee’s presence poses a “direct threat” to the employee’s health that cannot be reduced or eliminated with reasonable accommodation.
To prove that a “direct threat” exists, the employer must show that the medical condition poses a “significant risk of substantial harm,” not just that the CDC identified the condition as placing a person at higher risk. The “direct threat” determination must reasonably consider each individual’s circumstances, including factors such as the employee’s job duties, level of risk, type and likelihood of harm that could result, prevalence of COVID-19 in the area, the likelihood of the employee being exposed to the virus on the job, and the employee’s own health (e.g., whether the employee’s disability is well-controlled). After conducting the “direct threat” analysis, an employer still must attempt to reasonably accommodate the employee prior to excluding him or her from the workplace.
14. What should we do about employees who are 65 years or older?
Though people 65 years of age and older are at higher risk from COVID-19 according to the CDC, age by itself is not considered a “medical condition” for purposes of the ADA. As such, employers are not required under the ADA to reasonably accommodate employees merely for being 65 years of age or older. See Question G.4 in the EEOC’s COVID-19 and ADA Technical Assistance Questions and Answers. Under the Age Discrimination in Employment Act, employers cannot take adverse employment actions based solely on an employee’s age, such as excluding him/her from the workplace because of COVID-19. Employers and their employees over the age of 65 may wish to discuss ways in which the risks could be reduced, such as through telework or by wearing PPE.
15. What if an employee lives with a high-risk family member?*
The EEOC has clarified that employers are not required to accommodate employees who are concerned that a return to the workplace will put family members at home with underlying medical conditions at greater risk of contracting COVID-19. Employers may work with employees to come up with flexible work arrangements to limit the risks in such situations; however, they are not required to do so.
Flexible work arrangements could include working from home, adjusting the job duties associated with a particular position, splitting the position between two employees, providing adjustable hours, or allowing for a compressed work week. If your CAA decides to provide flexible work arrangements, you should create a policy to standardize the procedures for handling requests for a flexible work arrangement. This will discourage ad hoc arrangements that could lead to disparate treatment of employees and potential discrimination liability. An employee’s suitability for a flexible work arrangement should depend on their role, not their performance or personality. Tying the employee’s eligibility for a flexible work arrangement, as well as the details of that flexible work arrangement, to the specific duties their job description requires will also protect your CAA from potential discrimination liability. When implementing a flexible work arrangement program, CAAs should also consider information security and privacy issues, reimbursement policies, and local requirements such as tax and business registration laws if employees will be working remotely from a different state.
16. Should we adopt new policies specifically responding to the COVID-19 pandemic?
Your CAA should consider the pros and cons associated with developing and implementing a new policy to help it deal with the COVID-19 pandemic:
- Provide a framework for dealing with issues related to the pandemic
- Assist with measures to safeguard health and safety
- Liability protection
- The pandemic is an evolving crisis and a policy might be too rigid and difficult to enforce
- Legal requirements might continue to change as new laws in response to the pandemic are passed
- Needs of employees and clients could require greater flexibility
Any new policies adopted in response to COVID-19 should be broad enough to anticipate evolving situations, but also specific enough to be actionable.
*Updated October 15, 2020
**Updated December 4, 2020
***Updated April 15, 2021
This resource is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0467-03. Any opinion, findings, conclusions, or recommendations expressed in these materials are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.