McOmber McOmber & Luber, P.C.

Business & Employment Lawyers Red Bank & Marlton New Jersey

732-842-6501

Can My Employer Take my Temperature as I Come in to Work?

They may be able to. Normally, temperature checks constitute an overly broad medical exam under the Americans with Disabilities Act (“ADA”). According to the Equal Employment Opportunity Commission (“EEOC”), a medical examination may only be conducted for current employees if it is “job-related and consistent with business necessity.” In response to the 2009 H1N1 virus, the EEOC issued guidance that noted that if a pandemic became widespread in the community as assessed by state health authorities or the CDC, that employers may measure employees’ body temperature. However, if an employer decides that such testing is necessary, then the reasoning and supporting facts should be documented and preserved.

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    Employers can help reduce the chance of harassment is by clearly communicating to their workforce that fear of the COVID-19 pandemic should not be misdirected against co-workers based on national origin, race, among other protected classes.

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  • If an Employer Provides Flexible Working Accommodations to Employees with Children During the Pandemic, are There Sex Discrimination Issues?

    Not necessarily. An employer may provide telework, modified schedules, or other benefits to employees with children without running into sex discrimination issues. Employers may provide flexible working accommodations as long as they are not treating employees differently based on sex or other protected characteristics. By way of example, female employees cannot be given more favorable treatment than their male counterparts based on a gender-based assumption about who has caretaking responsibilities for children.

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  • Is There a right to Accommodation Based on Pregnancy During the Pandemic?

    Yes. Pregnancy-related medical conditions may be considered disabilities under the ADA, although pregnancy itself is not an ADA disability. If an employee makes a request for reasonable accommodation due to a pregnancy-related condition, the employer is obliged to consider the request under ADA rules. Additionally, as amended by the Pregnancy Discrimination Act, Title VII specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the equal to others who are similar in ability or inability to work. A pregnant employee may be entitled to job modifications, such as telework, modified work schedules or assignments, and leave (to the extent provided to similarly situated employees).

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  • Under the EEOC, what Waiver Responsibilities Apply When an Employer is Conducting Layoffs?

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  • Can I Be Forced to Work in Unsafe Working Conditions Created by COVID-19?

    No. You cannot be forced to work in a setting that ignores guidelines laid out by The U.S. Department of Labor Occupation Health and Safety Administration (OSHA) or by NJ Executive Order 192.

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  • What Are the New Jersey Guidelines for Employee Masks During the COVID-19 Pandemic?

    NJ Executive Order 192 states:

    • Employees must wear a mask when entering a worksite.
    • Employees can remove their masks if they work at a workstation more than six feet away from someone or they are alone in a walled off office.
    • Employers must make available, at their expense, masks for employees. However, an employee can wear their own masks if they desire.
    • Employers can deny entry to an employee who refuses to wear a mask unless the refusal violates state or federal law.  For example, if the person has a disability, an employer may be required to provide the employee with a reasonable accommodation unless it creates an undue hardship for the employer.  An employer can ask the employee for medical documentation to support their disability claim.

  • If I Self Quarantine Without Symptoms, Am I Protected By the Family and Medical Leave Act (“FMLA”)?

    No. FMLA coverage is generally available for “serious health conditions.” An employee who is asymptomatic and does not have a sick family member but is self-quarantining is not entitled to FMLA protection.

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  • How Has the New Federal Law Changed the FMLA with Respect to COVID-19 Issues?

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  • How Can I Prevent Incidents at Company Events and Holiday Parties?

    There are measures that employers can take to protect employees and attendees at these parties. For example, employers may choose not to serve alcohol, or have less alcohol available, via a drink ticket system or otherwise.

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    Employees and attendees drinking and driving home is another serious liability concern. Make sure that someone is responsible for monitoring consumption and ensuring no one is driving home if they are unable to do so safely.

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