Can My Employer In New Jersey Lawfully Require Me To Undergo, At Work, A Test For COVID-19?

Yes, your employer in New Jersey may lawfully require you to undergo a test for COVID-19. In fact, in New Jersey and during the present COVID-19 pandemic, if your employer requires or permits its workforce, whether in part or as a whole, to be physically present at a worksite to perform work, your employer is required, before each shift, to conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires.

Generally, measuring an employee’s body temperature is a medical examination. Because the United States Centers for Disease Control (the “CDC”) and state and local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

Likewise, an employer may administer a COVID-19 test (that is, a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace.

The federal Americans with Disabilities Act (the “ADA”) requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.

Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others. The ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard.

Consistent with the ADA standard, employers should ensure that the COVID-19 tests are considered accurate and reliable.

Further, under the circumstances existing currently, the ADA allows an employer to bar an employee from physical presence in the workplace if he refuses to have his temperature taken or refuses to answer questions about whether he has COVID-19, has symptoms associated with COVID-19, or has been tested for COVID-19.

Similarly, if an employer is hiring, it may screen applicants for symptoms of COVID-19. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.

An employer may take an applicant’s temperature as part of a post-offer, pre-employment medical examination. Any medical examinations are permitted after an employer has made a conditional offer of employment. However, as stated, employers should be aware that some people with COVID-19 do not have a fever.

The federal Occupational Safety and Health Administration (“OSHA”) states that employers may conduct work site SARS-CoV-2 testing. According to OSHA, employers may consider implementing strategies to reduce risks to the safety and health of workers on workplaces from COVID-19 that include conducting SARS-CoV-2 testing. Neither the federal Occupational Safety and Health Act (the “OSH Act”) nor OSHA standards prohibit employer testing for SARS-CoV-2, if applied in a transparent manner applicable to all employees (that is, as long as the testing is not retaliatory).

Under New Jersey Executive Order 192 signed October 28, 2020 and effective November 5, 2020 (“New Jersey Executive Order 192”), your employer must adhere to certain protocols to protect employees, customers and others who come into contact with the business, from COVID-19 including daily health checks.

Specifically, if your employer in New Jersey requires or permits its workforce, whether in part or as a whole, to be physically present at a worksite to perform work, your employer is required, before each shift, to conduct daily health checks of employees, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance, including the latest CDC guidance regarding COVID-19 symptoms.

Under New Jersey Executive Order 192, employers’ daily health checks of employees must be consistent with the confidentiality requirements of the ADA, the New Jersey Law Against Discrimination (the “NJLAD”) and any other applicable laws, and consistent with any guidance from the U.S. Equal Employment Opportunity Commission (the “EEOC”) and the New Jersey Division on Civil Rights.

If you are an executive or a professional in New Jersey and you believe that you have been wrongfully terminated, that you’ve been denied salary, bonuses, commissions, or other wages that are owed to you, or that your employer has failed or refused to reasonably accommodate your disability, call New Jersey Employment Attorney David S. Rich at (201) 740-2828 today.

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