The information provided within this FAQ does not constitute legal advice. Appropriate legal assessment and advice can only be given based on knowledge of your specific facts applied to the rapidly evolving legal landscape of employment law. We strongly recommend you consult with an employment attorney before acting on the below.
Last updated: May 13, 2021
Can my employer require me to get tested for COVID-19 if I have symptoms?
Yes. The EEOC has determined that COVID-19 is a “direct threat” to employees and co-workers and that, as such, testing requirements for those exhibiting symptoms is not a violation of the ADA. Of course, employers should uniformly apply this standard to all employees.
Your employer cannot fire you, send you home, or tell you not to come to work because they think you may have been exposed to the coronavirus based solely on your race, national origin, or disability. Harassment and discrimination on the basis of race, national origin, age, and disability (including having COVID-19 or another serious illness) is illegal under the New York City Human Rights Law.
Can my employer tell other employees that I have tested positive for COVID-19?
An infected employee should not be identified due to medical privacy considerations under the Health Insurance Portability and Accountability Act (HIPAA), as well as under protections guaranteed by the ADA, the FMLA, and other laws. Confidential medical information about the employee should not be shared. However, an employer may send out a generalized message to inform the workforce that there has been a reported case of COVID-19, and identify steps being taken to address the issue, along with retraining on its infection control practices, including handwashing and sanitizing workplace areas.
Healthcare providers are required to notify federal, state, and local health authorities of the diagnosis, and those authorities may provide additional guidance and requirements, including further notification, on-site medical questioning, or examinations. If an organization has not been contacted, the employer may initiate contact and seek further guidance.
For example, in North Carolina, if someone at a jobsite was in direct contact with others within the 14 days prior to testing positive for COVID-19, an employer should notify all affected employees, while also respecting employee privacy and confidentiality rights. The employer should also contact the local health department and the CDC and sanitize the jobsite. NC OSH encourages business to send home sick employees and ensure they stay home until they are no longer infectious. (As of May 2020, this has been required of certain business, like retail, by North Carolina executive order, provisions in which was enforceable by local and state law enforcement.)
How much information may an employer request from an employee who calls in sick to protect the rest of its workforce during COVID-19?
Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, ADA-covered employers (private employers with more than 15 employees and all state and local government employers) may ask if employees are experiencing the symptoms of the pandemic virus, including fever, chills, cough, shortness of breath, or sore throat without violating the ADA. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
According to OSHA’s Enforcement Guidance Memo, since COVID-19 is a recordable illness for most employers, most employers have the obligation to immediately investigate whether any COVID-19 cases among employees are work-related.
Given the nature of COVID, OSHA used its Enforcement Memorandum to clarify an employer’s analysis of work-relatedness in the context of COVID-19. OHSA’s requirements for deciding whether an employer made a reasonable determination of whether a case of COVID-19 was work-related include asking the employee how they believe they contracted the COVID-19 illness, discussing activities both in and out of the workplace that may have led to contracting the virus, and reviewing the employee’s work environment for potential SARS-CoV-2 exposure, especially in light of any other instances of workers in that environment contracting COVID-19 illness.
Certain types of evidence weighing in favor of a work-related spread include when several cases develop among workers who work closely together, if the illness is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19, or if the employee’s job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
Because this is an illness, if an employee voluntarily requests that his or her name not be entered on the OSHA Form 300 log, the employer must comply.
As per OSHA’s Enforcement Plan Memo, employers must report potentially work-related serious events, such as in-patient hospitalizations and fatalities, to OSHA in a timely manner. Workers requesting inspections, complaining of COVID-19 exposure, or reporting illnesses may be covered under one or more whistleblower statutes. The Enforcement Guidance commands employers to inform these workers of their protections from retaliation and to refer them to http://www.whistleblowers.gov for more information. OSHA will forward complaint information deemed appropriate to federal partners with concurrent interests.