Can My California Employer Ask Me Covid-19 Related Medical Questions?

by | Nov 1, 2020 | Discrimination, General Issues

After almost a year, Covid-19 remains a great health risk in California with no definite end in sight. However, as businesses begin reopening and returning to some semblance of normal, employers would understandably take precautions to protect their employees and customers from the virus and prevent its spread. However, it’s important employers both take steps to combat Covid-19 and obey California and federal anti-discrimination laws which protect their employees. While employers can take certain steps to help accomplish this, some questions and requirements they may have are illegal.

California employees have protection from discrimination under state and local laws. They’re also protected by federal government under the Americans with Disabilities Act (ADA) and Rehabilitation Act which are enforced by the Equal Employment Opportunity Commission (EEOC). These laws, which continue to apply during the pandemic, prohibit discrimination against individuals with disabilities and ban medical examinations. However, the EEOC issued additional guidance on what appropriate employment behavior entails during Covid-19, which differ slightly from the usual law.

The ADA applies to both public and private employers with 15 or more employees, as well as all state and local – but not federal – government employers no matter the number of people they employ.

What Your California Employer Can Ask You

  • Questions About Symptoms: ADA-covered California employers are permitted to ask an employee if they have any Covid-19 symptoms including chills, fever, or problems breathing.
  • Temperature: Employers are permitted to take an employee’s temperature, as it is a sign of Covid-19.
  • Covid-19 Diagnosis: It’s permitted to ask employees if they were diagnosed with Covid-19 or tested for the virus when they enter the workplace.
  • Covid-19 Contact: Employers may ask employees if they’ve been in contact with anyone diagnosed with Covid-19 or displaying Covid-19 symptoms.

What Questions are Prohibited in California?

  • Covid-19 Status of Family Members: The federal government and California both enacted a version of the Genetic Information Nondiscrimination Act (GINA and CaGINA, respectively) forbidding an employer to ask their employees any medical questions regarding their relatives.
  • Singling Out One Particular Employee: Unless an employer has reasonable belief based on objective evidence an employee has Covid-19, they cannot test or screen one without doing so for all employees.
  • Mandating Antibody Tests to Come Back to Work: The ADA considers an antibody test a medical exam; an employer may not ask employees to submit to one to return to the worksite.

Speak to an Experienced California Employment Attorney Today

Covid-19 changed nearly every part of our lives, so it’s normal if you wonder whether workplace rights have changed for you or your employer. If you believe you’ve suffered discrimination at work or any violation of your rights, contact an experienced California employment attorney at Rothschild & Alwill, APC today to learn more and see how we can help.