Can Employers Demand Staff Take A Covid
As lockdown measures continue to ease across the UK, more employees are returning to the workplace. Employers have a duty to protect their employees health & safety and to take appropriate measures to make the workplace COVID secure, which has led some to question whether they can, or should, compel employees to take COVID-19 tests as part of their updated health & safety measures.
So could a compulsory Covid-19 test become part of our working routine? It is a complex question that employers would be wise to think through carefully. In this Q&A with Management-Issues, we speak to Kerry Garcia, Partner, and Michelle Hobbs, Senior Associate at leading UK law firm, Stevens & Bolton LLP.
B Confidentiality Of Medical Information
With limited exceptions, the ADA requires employers to keep confidential any medical information they learn about any applicant or employee. Medical information includes not only a diagnosis or treatments, but also the fact that an individual has requested or is receiving a reasonable accommodation.
B.1. May an employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?
The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
B.2. If an employer requires all employees to have a daily temperature check before entering the workplace, may the employer maintain a log of the results?
Yes. The employer needs to maintain the confidentiality of this information.
B.3. May an employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?
What Are The Testing Requirements Under The Updated Ets
Employers must offer testing at no cost during paid time to:
- Symptomatic unvaccinated employees, regardless of whether there is a known exposure
- Unvaccinated employees after an exposure
- Vaccinated employees after an exposure if they develop symptoms
- Unvaccinated employees during an outbreak
- All employees during a major outbreak
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Can Businesses Make Testing Mandatory
Government guidance requires anyone with Covid-19 symptoms to arrange a test. As employers have a duty to protect the health and safety of their employees, it is likely that they can reasonably instruct an employee exhibiting symptoms to be tested. If the employee tests positive, the employer will be alerted to the risk of transmission at the workplace and can take action to mitigate that risk. If the employee fails to follow the employers instruction to arrange a test, the employer may be justified in taking disciplinary action against them.
However, it may not be reasonable for the employer to require an employee to be tested if they are not exhibiting symptoms . Whether testing is reasonable in these circumstances will depend on the extent to which the risk of Covid-19 cannot be managed in the workplace by other measures, such as social distancing and remote working.;;
Where testing is considered necessary and proportionate, businesses may seek to make testing a contractual obligation. If the obligation to be tested is validly incorporated into the employees contract, failure to comply would be a breach, which may entitle the employer to take disciplinary action.
Do Vaccinated Employees Need To Wear Masks At The Workplace
The CDC announced;on May 13 that fully vaccinated individuals do not need to wear a mask outdoors and can largely resume activities without wearing a mask except where required by federal, state and local laws and workplace guidance.;California employers can relax their mask-wearing policies in many circumstances. Under the June 17 Cal/OSHA ETS updates, employees are not required to wear face coverings outdoors , regardless of their vaccination status, although employees must be trained on CDPH recommendations for outdoor use of face coverings.Employers may allow fully vaccinated employees to forgo wearing face coverings indoors, but they must document their vaccination status. CDPH guidance that took effect on June 15 states that everyone must wear face coverings regardless of vaccination status in settings including:;
- On public transportation, including airplanes, ships, ferries, trains, subways, buses, taxis and rideshares, and in transportation hubs such as airports, bus terminals, marinas, train stations, seaports and subway stations
- Indoors at K-12 schools, child care facilities and other youth settingsalthough updated guidance is expected
- Health care settings, including long-term care facilities
- State and local correctional facilities and detention centers
- Homeless and emergency shelters
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How Quickly Must Employers Implement The New Provisions Of The June 17 Cal/osha Ets
Employers should implement the June 17 ETS as soon as possible, the revised ETS FAQs state. For those unable to implement the ETS immediately, the employer must implement or retain alternative controls to ensure employees health. If an employer continues to comply with the November 2020 ETS while implementing the revisions, Cal/OSHA will not cite the employer, according to the revised ETS FAQs.Further, with respect to face coverings, employers can comply with the June 17 updated ETS by requiring face coverings for all employees while gathering the required documentation to allow fully vaccinated persons to go without face coverings.If an employer is unable to provide approved respirators immediately, it must take alternative measures to protect unvaccinated employees until approved respirators are available.
Map Of 50km Zone Around Greater Sydney
Includes the Greater Sydney including the Blue Mountains and Wollongong local government areas, but no longer includes the Central Coast or Shellharbour local government areas.
Rules are in place for emergency workers including
- police officers
- members of the Ambulance Service of NSW and
- members of Fire and Rescue NSW.
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Is Guidance Available On The Logistics Of Bringing Employees Back On
Yes. California has set up websites dedicated to helping businesses reopen and bring employees back to work on-site that address the needs of various industries and workplace types.The states website, Blueprint for a Safer Economy, provides industry-specific guidance for creating safe environments for employees and customers.Safety requirements also vary by workplace type, from office space to retail center to industrial site. Employer guidelines should address various issues, including the use and/or rearrangement of common areas and meeting rooms, when face masks should be worn, when and where visitors are permitted, and employee self-screening requirements.Californias COVID-19 Employer Portal is a tool that generates a road map, customizable by county and industry, to ensure safe and compliant workplace reopenings and operations.General COVID-19 resources are also offered by the CDPH,;CDC and World Health Organization.
If You Get Symptoms At Work
Tell your manager immediately. Your employer will have a process in place. Follow their guidelines and advice.
You will need to:
- isolate immediately from other staff
- wear a face covering if one is available
- keep a distance of least 2 metres from others
- phone your GP to arrange a test for COVID-19
Go home as soon as it is safe to do so. Self-isolate at home and phone your GP.
Do not use public transport of any kind to go home.
If you cannot go home immediately:
- remain self-isolating in the building and phone your GP
- avoid touching people, surfaces and objects
- cover your mouth and nose with tissues when you cough or sneeze. Bin these tissues in a waste bag
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B During An Influenza Or Coronavirus Pandemic
;;; The following questions and answers discuss employer actions when the WHO and the CDC report an influenza or coronavirus pandemic.
5. May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
;;; Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat.; *Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.
How To Encourage Voluntary Testing
Ideally, businesses wishing to implement routine testing of their workforce will do so with the consent of their staff. Employees are more likely to consent if they have confidence that their employer will handle personal data sensitively and securely, and if they believe they wont suffer financially if they test positive. To address this, employers should consider extending company sick pay to employees who test positive and are required to self-isolate or maintain those employees on their normal pay.;
Ultimately, to ensure employee testing is handled correctly, communication is key. By emphasising that testing is a necessary and proportionate means of limiting a Covid-19 outbreak in the workplace, which could result in its closure and threaten jobs and livelihoods, employers should be able to garner support for a testing programme.
Lloyd Davey is a partner and Sarah Taylor a senior associate at Stevens & Bolton
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Employer Incentives For Covid
ADA:; Employer Incentives for Voluntary COVID-19 Vaccinations
K.16.; Under the ADA, may an employer offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own from a pharmacy, public health department, or other health care provider in the community?;
Yes. ;Requesting documentation or other confirmation showing that an employee received a COVID-19 vaccination in the community is not a disability-related inquiry covered by the ADA.; Therefore, an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community.; As noted elsewhere, the employer is required to keep vaccination information confidential pursuant to the ADA.
K.17.; Under the ADA, may an employer offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent?;
GINA:; Employer Incentives for Voluntary COVID-19 Vaccinations
K.18.; Under GINA, may an employer offer an incentive to employees to provide documentation or other confirmation that they or their family members received a vaccination from their own health care provider, such as a doctor, pharmacy, health agency, or another health care provider in the community?
K.19.; Under GINA, may an employer offer an incentive to employees in exchange for the employee getting vaccinated by the employer or its agent?
Maintain A Healthy Work Environment
Since COVID-19 may be spread by those with no symptoms, businesses and employers should evaluate and institute controls according to the hierarchy of controls to protect their employees and members of the general public.
Consider improving the engineering controls using the building ventilation system. This may include some or all of the following considerations:
- Increase outdoor air ventilation, using caution in highly polluted areas.
Perform routine cleaning and disinfection
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If An Employer Wants To Test Staff
If an employer wants to test staff for COVID-19, they should first talk with either:
- a recognised trade union or other employee representatives
It’s a good idea to discuss:
- how testing would be carried out
- how staff would get their test results
- the process to follow if someone tests positive for COVID-19
- pay if someone needs to self-isolate but cannot work from home
- how someone’s absence would be recorded if they need to take time off work
- how testing data will be used, stored and deleted, in line with data protection law
Any decision after that discussion should be:
- put in writing, for example in a workplace policy
- made in line with the organisation’s existing disciplinary and grievance policy
If the employer cannot reach agreement with staff, it’s a good idea to get legal advice before bringing in a testing policy.
If staff are tested, everyone must still follow guidelines on:
- self-isolation for COVID-19 for example, if they have symptoms or test positive
Case Study: Asking Employees If They Are Experiencing Coronavirus Symptoms
A manufacturing company is concerned about COVID-19 spreading amongst its staff.
The company is considering a range of measures to keep its employees safe, including regular cleaning and asking staff to complete a short questionnaire at the start of each day about whether or not they have any symptoms.
What are the key data protection considerations?
If the company introduced a measure that involves processing personal data , it would need to comply with data protection law the data must be processed lawfully, fairly and transparently. It should also consider the need to complete a Data Protection Impact Assessment before any measures are put in place.
The company needs to be clear, open and honest with staff about how and why it would use their personal data, how long it would be kept for, and who it would be shared with. The staff should also be told how the information would be held securely as well as the rights they have in relation to the data.
The company may be able to use legitimate interests as its lawful basis for the processing. Health data is special category data under data protection law, so an additional special condition is needed for the processing to be compliant the companys health and safety obligations could be the relevant special condition here.
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How Do I Ensure I Dont Collect Too Much Data
For special category data, such as health data, it is particularly important to only collect and retain the minimum amount of information you need to fulfil your purpose.
In order to not collect too much data, you must ensure that it is:
- adequate enough to properly fulfil your stated purpose;
- relevant has a rational link to that purpose; and
- limited to what is necessary you do not hold more than you need for that purpose.
In the context of test results, do not collect unnecessary or excessive information from people. For example, you probably only require information about the test result, rather than additional details about underlying conditions. As an employer, you should be able to demonstrate the reason for testing individuals or obtaining the results from tests.
Data protection law also requires you to hold accurate;personal data. As such, you should record the date of any test results, because the health status of individuals may change over time and the test result may no longer be valid.
How Often Should I Check For Symptoms Or Test Employees
This depends on the safety measures that your organisation needs to put in place. Any checking or testing of your staff and subsequent processing of their health information should be reasonable and proportionate to the specific circumstances including, in some cases, their role.
As an employer and a controller for your employees health information, you need to decide the appropriate timescale between tests. For example, in some sectors where interactions with vulnerable individuals are common, repeat testing may be required more often.
You also have a responsibility to take reasonable steps to ensure that you hold accurate data.
Individuals health status may change over time, so if you do decide to make any record of test results, you should ensure its accuracy by recording the date of the result where appropriate. You need to base any decisions you take on factually accurate information.
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Questions And Answers: Religious Discrimination In The Workplace
This technical assistance document was issued upon approval of the Chair of the U.S. Equal Employment Opportunity Commission.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.
As a result of the Supreme Courts decision in Our Lady of Guadalupe School v. Morrissey-Berru, we are currently working on updating this webpage.
Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees, as well as employment agencies and unions, from discriminating in employment based on race, color, religion, sex, and national origin. It also prohibits retaliation against persons who complain of discrimination or participate in an EEO investigation. With respect to religion, Title VII prohibits:
The following questions and answers were adapted from EEOCs Compliance Manual Section on Religious Discrimination, available at , which contains more detailed guidance, legal citations, case examples, and best practices. It is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VIIs prohibition against religious discrimination, and provides guidance on how to balance the needs of individuals in a diverse religious climate.