As an employer, you have an obligation to provide a safe, healthy work environment for your employees. What questions can you ask - and which must you steer clear of?

Employers are required to provide safe and healthy work environments for their employees. Recognizing the value their staff provides to the business, most employers take this responsibility seriously.

Sometimes, however, the need to protect worker health conflicts with laws concerning both healthcare privacy and workplace discrimination. When workers might be carriers of a contagious illness, what questions are employers allowed to ask - and which ones are a bridge too far?

Which Laws Govern Workplace Health and Safety?

Workplace health and safety are governed by a patchwork of federal and state laws. Federal laws to consider in any workplace safety situation include:

• The Occupational Safety and Health Act (OSH Act), which requires employers to provide a safe and healthy working environment and to eliminate or mitigate certain identified hazards.


• The Americans With Disabilities Act (ADA), which protects individuals who are disabled or who are regarded as disabled. The ADA prohibits discrimination against those with actual or perceived disabilities and requires workplaces to provide reasonable accommodations for a disability.


• Title VII of the Civil Rights Act (Title VII) prohibits discrimination based on race, ethnicity, national origin, or sex. Certain health-related questions can also implicate these categories, making Title VII an important consideration.


• The Pregnancy Discrimination Act (PDA), which prohibits discrimination against pregnant employees.


• The Family and Medical Leave Act (FMLA) requires certain employers to provide up to 12 weeks' unpaid leave to workers who need to care for their own or a family member's medical needs. Questions of confidentiality may arise under FMLA, as well as the need to follow the law itself.


• The Fair Labor Standards Act (FLSA), which governs requirements for employee pay, including wage and hour requirements, pay for exempt salaried employees, and similar standards.

In addition, states have their own workplace laws that may impact health and safety. Understanding applicable state law in addition to federal requirements is essential.

What Employers Can and Can't Ask About Health

The appearance of the novel coronavirus, COVID-19, has raised several questions concerning workplace health. For example:

• Can employers ask their staff about respiratory symptoms?


• Can they test workers' temperatures or screen them for other symptoms?


• Can they require staff to wear personal protection equipment (PPE) at work?

Traditionally, employers are not allowed to subject workers to medical exams that aren't related to the job itself. Workers covered by the ADA may be screened medically only if the screening is necessary to document a medical condition related to an employee's request for reasonable accommodation.

However, in the case of COVID-19, guidance from the Equal Employment Opportunity Commission (EEOC) states that employers can take workers' temperatures to screen for the virus. To fully comply with the law (and to provide the best available information for virus control measures), employers should test every employee, whether or not they are covered by the ADA.

When employees call in sick, employers can also ask if they are experiencing COVID-19 symptoms, says the EEOC. However, employers must protect workers' responses, since they constitute confidential medical information as the ADA defines it. The ADA does not prevent employers from sending workers home if they show COVID-19 symptoms to protect others in the workplace.

Where to Turn for Help With Legal Compliance

The first place to turn with specific legal questions is to a lawyer with experience in workplace health and safety issues. A lawyer can often address specific questions about business or employee relations.

For help ensuring your staffing meets legal requirements, talk to a recruiter as well. Your recruiter can help you review and meet certain standards. Recruiters also help their clients meet staffing needs via temporary or contract workers by serving as the workers' employer of record.

This article is not intended as legal advice and should not be construed as such. If you have specific legal questions, consult an attorney who is licensed to practice law in your jurisdiction.