Disclaimer: The following is for informational purposes only. No statement, opinion or commentary is intended to provide legal advice to any specific person, organization or entity. Only a written attorney-client agreement will create an attorney-client relationship. Please contact Michael C. Holy or Carl M. Schultz to discuss all potential legal matters.
As a best practice, all employers should first attempt to comply with all existing employment and labor laws, notwithstanding that COVID-19 has been deemed a Pandemic by the Center for Disease Control (“CDC”). Of course, given the ever-changing recommendations by Federal, State, and Local officials, the Pandemic likely may require some deviations from past practices and may raise new issues that many employers have never faced. Rest assured that the attorneys at Holy & Schultz will be happy to assist you in navigating these new challenges.
All employers should regularly check the CDC.gov website to review its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (“CDC Guidelines”) (last updated as of the writing of this article on March 21, 2020). All employers should also regularly check the OSHA.gov website to review the 32-page Guidance on Preparing Workplaces for COVID-19. Unfortunately, the Pandemic is currently in its early stages and as it progresses, the CDC and OSHA Guidelines will likely be modified from time to time. Several States, including Illinois have issued stay-at-home orders (Illinois issued its 11-page stay-at-home order on March 21, 2020, effective through April 7, 2020, except as necessary to perform certain personal and essential business activities - a long list of exempted businesses and activities are referenced in the March 21, 2020 Illinois order).
The CDC and OSHA Guidelines: (1) reflect best practice measures to reduce the spread of the Pandemic; (2) provide guidance for employers concerning suggested employment practices; and (3) reflect exceptions and defenses to traditional employment and labor laws when followed. Be advised, however, that all employers should consult with legal counsel when considering taking any actions they consider to be outside of their normal employment business practices.
At Holy & Schultz, we have fielded numerous questions from employers pertaining to the COVID-19 Pandemic.
One question that may be on the minds of employers:
Question: Can the employer require temperature checks of employees while at work or as a pre-condition to work?
Response: The Americans with Disabilities Act (“ADA”) generally prohibits employers from making medical inquiries and requiring medical exams. Even a temperature check will likely be considered a medical exam. However, a temperature check may be allowed if an employer can show that the: (1) 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 a reasonable accommodation. The employer, through its employment counsel, will also have to assess the particular facts and circumstances not only considering Federal, but State and local laws and ordinances.
The takeaway from this article is that the employment law questions relative to COVID-19 are complex and should be assessed by experienced counsel. Rest assured that Holy & Schultz attorneys are ready to promptly assist employers in navigating this new and challenging time. Please contact us today. We look forward to working with you and your company.
Michael C. Holy, Managing Partner of Holy & Schultz, LLC
Carl M. Schultz, Managing Partner of Holy & Schultz, LLC
1 s 450 Summit Avenue, Oakbrook Terrace, Illinois 60181
Phone: 630.286.6777; Facsimile: 630.286.6578.
Email: MichaelH@holyandschultz.com; CarlS@holyandschultz.com
Visit us on the web: www.holyandschultz.com