Do not ask, “Do you have coronavirus?” Such an inquiry could run afoul of the ADA. (Although it is not clear Covid-19 qualifies as a “disability,” employers generally need to know whether employees are fit to work and what limitations, if any, they have—not a specific diagnosis.) Generally, you can ask, “do you have any of the specific symptoms (listed on the CDC website)”? From Foley & Lardner LLP Plan. Don’t Panic.

It is likely a matter of time before a [CLUB] operator faces the decision of whether to decline a guest or how to address a guest who exhibits signs of COVID-19. Innkeeper laws are fairly well established in regard to public safety. Although most hospitality assets are public accommodations, in this, like most situations, the general rule is to act, and instruct staff to act, reasonably under the circumstances. From check-in to housekeepers, employees should be instructed to be vigilant and report their concerns. If a guest presents with signs of COVID-19, the ability to deny service may be possible, but depending on the circumstances, it might be best to maintain a cooperative approach to avoid additional legal issues.

If your staff is uncertain about a guest, perhaps it is best to move them into a designated quarantine area, while a decision is made. On the other hand, if it is clear that the guest is sick and they are likely to cause health risk to your employees and guests, it may be best to have such guest leave the property. Overreacting by implementing broad-based bans and making business decisions about guests that are not based on statistical realities could result in litigation and/or liability pursuant to laws that prohibit discrimination based upon disability (perceived or real) and national origin, among others.

In any event, if an infected guest (or employee) is suspected, you should contact your local health department immediately. You should also include in your plans a location(s) for quarantine space for guests (or employees) who are exhibiting signs of COVID-19 in order to minimize the impact to other guests, employees, and the property. Again, advance coordination with state and local health officials will help you in planning and ensuring a rapid mobilization and response. From Foley & Lardner LLP: Managing Commercial Impact

The EEOC states a test may be required before employees may be permitted to return to work.  However, other options exist, such as requiring a doctor’s note or a time period during which the employee has been symptom-free.  Recognize that obtaining a COVID-19 test or doctor’s note may be difficult and overwhelm medical services in these first few weeks. From Atkinson, Andelson, Loya, Ruud & Romo: Atkin’s Answers.

There is no clear answer at this time whether temperature taking is a violation of an individual’s privacy.  Nonetheless, if an employer feels compelled to take employees’ temperature as a condition of remaining at work, there may be defenses available that doing so during this crisis is valid in an effort to protect other workers and the general population in reliance on various government declarations of emergency.  A less problematic alternative would be to request employees self-monitor their temperature on a regular basis.

Based on the current EEOC guidance summarized below, there is risk associated with ordering a medical exam due to disability law protections unless a pandemic becomes widespread in the community as assessed by local health authorities or the CDC.  As of today , only Santa Clara County has been identified in California by the CDC as warranting temperature taking as a measure of COVID-19 protection.

The EEOC states:

Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.  However, employers should be aware that some people with influenza, including the 2009 H1N1 virus, do not have a fever so the absence of a fever does not mean the worker is not contagious.

The Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) restrict employers’ inquiries into an employee’s medical status.  The EEOC considers taking employees’ temperatures to be a “medical examination” under the ADA. The ADA and FEHA prohibit employers from requiring medical examinations unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a “direct threat” to the health or safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

Taking employees’ temperatures may be prohibited if is not job-related and consistent with business necessity. The analysis into whether taking a temperature is job-related and consistent with business necessity is fact-specific and may vary among employers and circumstances. The EEOC takes the position that during a pandemic, employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Such an assessment by the CDC or local authorities as to the severity of COVID-19 may provide needed objective evidence for justifying a medical examination. If COVID-19 becomes widespread in the community, as determined by the CDC, or state or local health authorities, then employers may consider taking an employee’s temperature at work.

However, employers must consider the effectiveness of the temperature check, as an employee may be infected with the COVID-19 coronavirus without exhibiting recognized symptoms such as a fever, and as fever may result from another condition, so temperature checks may not be the most effective method for protecting its workforce.  Employers considering taking temperatures must also account for the safety and training of those conducting the testing, where the testing will be conducted, the privacy concerns of employees sent home, and compensation to employees for time spent waiting to be tested. From Atkinson, Andelson, Loya, Ruud & Romo: Atkin’s Answers.

Once local authorities or CDC declare the influenza pandemic as severe an employer may reasonably conclude certain disabled employees will face a direct threat if they contract pandemic influenza.  Under such circumstances, an employer may make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.  Therefore, employers should engage in the interactive process with employees to determine if reasonable accommodations are available, including working elsewhere at the company or taking a leave of absence. From Atkinson, Andelson, Loya, Ruud & Romo: Atkin’s Answers.

If the employee is suffering from symptoms then working from home  is a reasonable accommodation under the ADA and FEHA if the job duties can be performed from home.  If the work from home request is preventative, then allowing such is not required but is a best practice job duties permitting. From Atkinson, Andelson, Loya, Ruud & Romo: Atkin’s Answers.

Employers may ask employees if they are experiencing influenza-like symptoms: fever, chills, difficulty breathing, cough, or sore throat.  The employer must maintain any information in a confidential employee medical file.

Be sure to perform routine environmental cleaning to disinfect the work area(s) of the affected employees. From Atkinson, Andelson, Loya, Ruud & Romo: Atkin’s Answers.