There have been a lot of questions arising out of the Coronavirus (COVID-19). Not only is there the risk of getting the Coronavirus and the need to protect yourself, employees and customers from it, there is also the risk of getting sued as a result of your response to the Coronavirus. In addition to the many new laws, the pre-existing laws also need to be remembered.
Many dealers have asked if they can take employee temperatures. While the consensus seems to be yes, there are risks particular to California in doing so. The best protection is face masks, which should be provided to all employees; regularly cleaning commonly used surfaces like doorknobs, restrooms and kitchen areas; social distancing; and encouraging employees to wash their hands frequently and to go home if they feel sick or have a temperature. These requirements and others should be in a written policy so it is clear you are not discriminating when sending employees home or imposing other protections.
If you are taking temperatures, you need to know that taking an employee’s temperature is a medical exam. An employee is entitled to confidentiality with respect to all medical exams and information. Where tests are concerned, the employer is entitled only to know if the employee passed or failed. The employer is not entitled to know the reason the employee failed the test, unless the employee wants to volunteer that information. The employer should not ask the employee to volunteer the information because that alone can be seen as coercive because some employees are going to want to please their employer and may feel compelled to provide the information even if they don’t want to, if asked.
Don’t assume a temperature means COVID-19. If you are going to send people home with a fever, you need a written policy to define parameters. If the employee volunteers another explanation that is not something contagious, then you can’t necessarily require them to go home. For example, it may be something a doctor can confirm, like pregnancy, which can sometimes cause fever. You can’t send an employee home because they are pregnant and you can’t ask an employee if they are pregnant without risking a lawsuit. If you are taking temperatures, your policy should also define “fever.” Is it anything over 98.6 degrees or does it have to be over 100.4 degrees to be a fever?
If you are going to take temperatures, you also need to protect the person taking the temperature. Ideally, it would be a medical person taking temperatures. In most dealerships, that is not practical. The alternative is to designate one or two human resources employees to take temperatures. However, those employees have to be provided with the means to protect themselves from exposure if an employee tests positive. The employee needs to be counseled on what to do if an employee tests positive. The response needs to be consistent across the board, needs to isolate the person with the fever or immediately send them home. Employees should also be counseled not to touch the front of the mask, and to dispose of masks and gloves properly. All of this needs to be included in a written policy for consistency.
Because employees are entitled to confidentiality regarding their medical conditions, the results of a medical exam cannot be given to other employees. Therefore, if an employee is sent home after their temperature is taken, the employee taking the temperature needs to be careful not to confirm assumptions made by others about why the person went home, if they saw the person leave. Likewise, the employee taking temperatures should not be telling people that the employee was sent home because they had a fever, or even that they were sent home if everyone knows that would be the reason. It is fine to confirm that a person is not in, but the reason needs to remain confidential to the extent possible. Again, this all needs to be included in a written policy. Even when a supervisor is told one of their direct reports went home, the information provided needs to be limited and no information should be given beyond the fact that the person went home and their date of return, if currently known. No assumptions should be made about why a person has a temperature. There are many reasons that a person could have a fever unrelated to Coronavirus; it is flu season after all.
INFECTIOUS DISEASE PREPAREDNESS AND RESPONSE PLAN
Whether you are going to take temperatures or not, you need to have a written Infectious Disease Preparedness and Response Plan. The reason for the plan is threefold: First, you want to make sure you are doing everything you can to protect employees. Second, you want to make sure that employees know what you want them to do and that there is no misunderstanding about your instructions. Third, you want to make sure your actions, and the actions of any employees in the dealership, are consistent with respect to all employees so that allegations of discrimination can be dispelled.
Although COVID-19 is not a disability under the Americans With Disabilities Act, employees have rights under other laws to sue, for everything from failure of the employer to protect them from physical harm from infectious disease, to disparate treatment if one employee is sent home and another is not, or for violation of any one of the new laws to protect employees, like the Families First Coronavirus Response Act, The Emergency Family and Medical Leave Expansion Act, and The Emergency Paid Sick Leave Act with respect to sick leave pay. If all of the requirements you are imposing on employees are set forth in one, well-written policy, you protect the dealership.
If you do get sued, you can use the policy as evidence that you took reasonable steps to protect your employees and treated them fairly, as long as you require people to follow it and write them up when they don’t. The policy will likely be one of the first things a plaintiff’s attorney will ask to see if they are thinking of suing. They will want to see it for two reasons: One, to see if you have a policy in place, and two, to see if you followed the policy. If you don’t have a policy, or if you failed to follow the policy you do have, the likelihood of being sued increases because it increases the chance that a plaintiff can win. If you don’t yet have an Infectious Disease Preparedness and Response Plan, have your attorney prepare one for you. If you would like assistance, you can reach Erin Tenner at 805-551-1318 or please leave a message at 818-907-4071.