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Workers' Rights: What Your Boss Can and Can't Do During the Pandemic

EEOC, CDC rules for employers on temperature checks, working remotely, masks and more

spinner image A worker gets a temperature check before being allowed back at work
Employees undergo mandatory temperature checks during a shift change at Vibram Corporation to help limit transmission of COVID-19 in North Brookfield, Massachusetts.
Barry Chin/The Boston Globe via Getty Images

As employees return to workplaces that have been shut down for weeks because of the coronavirus pandemic, they are bringing their questions about their personal safety with them.

According to a recent poll by Eagle Hill Consulting, 54 percent of respondents said they are worried about workplace exposure to the virus that causes COVID-19. While most of those surveyed (71 percent) were confident that their employer could bring them back safely, employees still have many questions about what they will be required to do to deter the spread of the coronavirus in their workplace.

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Christine Dinan, senior staff attorney at A Better Balance, a nonprofit that helps people navigate legal issues in the workplace, says the volume of COVID-related requests their organization has received has tripled in recent weeks.

"Now that we're in reopening mode, we're getting a lot of questions from folks who are still unable to work for one or more reasons, or concerned about going back to work, given certain health-related reasons,” Dinan says.

The Centers for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) have created guidelines for workplaces to follow for the important questions that people have during the coronavirus outbreak. While the answers may vary based on your personal circumstances and the conditions in your workplace, here are responses to key questions on what your employer can do during the pandemic.

Can my company take my temperature when I arrive?

Yes. Usually, taking your temperature would be considered a medical examination, which would be a violation of the Americans with Disabilities Act (ADA). But because the coronavirus can pose a direct threat to your coworkers and others, employers may take your temperature, according to EEOC guidance.

"Employers will be able to take temperatures, however, only for as long as the EEOC, working with the Centers for Disease Control, deems these otherwise prohibited medical inquiries are necessary to prevent the spread of COVID-19,” says Jay Rosenlieb, an employment lawyer in Bakersfield, California.

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Though thermal scanners are one option companies have used to check their employees for symptoms of the coronavirus, workplace safety experts note that this type of screening alone may not be sufficient.

"We know there is significant risk of infection from individuals who are presymptomatic or asymptomatic — no fevers,” says Deborah Berkowitz of the National Employment Law Project. “So this is just one small measure — but not one that is really protective for workers."

I've been working from home, but my company is about to reopen its offices. Can my employer force me to come back to work there?

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This one is complicated, but generally, if your company says you have to return to the workplace, you have to go back if you want to keep the job. “Workers have a very limited right under the law to refuse work they consider to be hazardous to their health,” Berkowitz says.

There may be options, however, based on your circumstances. “At the federal level, and broadly speaking, I'm not aware of any protection that allows you to stay home with job protection or to collect pay simply because you are concerned about exposure to COVID-19 without sort of an underlying health condition,” Dinan says. “However, if you are immunocompromised or if you have a certain health condition that makes you more susceptible to serious complications, you may be entitled to continue teleworking as a reasonable accommodation under the Americans with Disabilities Act."

And under the recently passed Families First stimulus legislation, you may qualify for paid family medical leave or paid sick leave under certain conditions related directly to the coronavirus pandemic.

Watch: Navigating the New Normal of Going to the Office

Wearing a face mask is really uncomfortable for me. Can my company make me do it?

Yes. During the pandemic your organization can require you to wear a mask, gloves or other personal protective equipment (PPE) if management considers it necessary. “In the absence of a medical condition or religious objection, which can be accommodated with alternative PPE, an employer can require the wearing of a face mask,” Rosenlieb says. If you have a disability that might make one of these requirements a problem — say, an allergy to latex, and the company offers only latex gloves — you may ask your employer to make reasonable accommodations.

Can my employer force me to stay home if I have symptoms of the coronavirus?

Yes, according to EEOC and CDC guidance. Protecting others in the workplace from potential exposure to the coronavirus takes precedence. “This is the same as is always the case,” says Rosenlieb. “If an employee presents with an illness that will impair performance or creates an imminent danger to other employees, the employee can be sent home."

If I call in sick or go home early because I'm not feeling well, how much can my boss ask me about my symptoms?

Outside of very limited circumstances, your employer cannot ask about symptoms or for a diagnosis, Rosenlieb says. The EEOC notes that your employer may only ask questions to determine if you may have symptoms associated with COVID-19; these include fever, chills, cough, shortness of breath and sore throat.

I took some personal days to spend time with family who live near a coronavirus hot spot. Can my boss ask where I went?

Yes. If public health officials have recommended that people who visit certain locations remain at home for several days once they return, your employer can ask whether you are returning from those places, even if the travel was personal. Rosenlieb adds that people returning from foreign destinations also may be asked by the Department of Homeland Security where they went and they could be required to self-quarantine.

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My boss wants to know if I have an underlying condition that may make me more vulnerable to COVID-19. Can she ask that?

The EEOC says she cannot. “It is up to the employee to disclose any underlying health conditions that will create an increased vulnerability to COVID-19,” Rosenlieb says. Protecting people with disabilities from unfair treatment due to their condition is the main goal of the ADA, so questions like these are generally a no-go.

When employees return to work after being sick with COVID-19, can my boss ask me for a doctor's note saying I'm safe to work?

Yes, the EEOC says. This request from your employer wouldn't necessarily violate the ADA.

Can my company require me to take a coronavirus test to be able to work?

According to EEOC guidelines, to deter COVID-19 from spreading in your workplace, your employer can require you take a test to check whether you currently have an active case of COVID-19 (i.e.  a viral test).

However, your employer cannot require you to take a test to determine whether you have antibodies for the coronavirus. The antibody tests determine whether you had COVID-19 in the past. The EEOC says the antibody tests would be a violation of the ADA because it would be a medical examination that is not “job related and consistent with business necessity.”

Editor’s note: This story was originally published on May 13, 2020, and has been updated with information about antibody testing.

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