Anticipating the New Normal: Temperature Screenings; Return to Work Guidance; Face Coverings

Non-Discriminatory Temperature Screening Is Permitted

Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic. Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

Clarifications Have Been Issued Re Return To Work But Still Confusion

As the COVID-19 pandemic continues to affect California employers and employees, new guidelines by state and federal agencies are being issued on a daily basis. However, there are still open questions and also conflicting guidelines. Please read below for new guidelines which have clarified matters but also new guidelines which are not yet consistent with each other.

The EEOC’s updated guidance can be found here: https://www1.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?renderforprint=1

The California DFEH’s guidance can be found here: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/03/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Under the above referenced guidance, both the EEOC and the DFEH state that employers may obtain the following information from employees: if they are experiencing symptoms of the pandemic virus, which for COVID-19 includes fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record.

However, despite this clarity as between the EEOC and DFEH, several other areas remain murky.

When can employees who had COVID-19 return to work?

The CDC has stated that people who have had COVID-19 or have been caring for someone with COVID-19 can stop home isolation under the following conditions:

• If you will not have a test to determine if you are still contagious, you can leave home after these three things have happened:
• You have had no fever for at least 72 hours (that is three full days of no fever without the use medicine that reduces fevers);
• Other symptoms have improved; and
• At least 7 days have passed since your symptoms first appeared.

If you will be tested to determine if you are still contagious, you can leave home after these three things have happened:

• You no longer have a fever (without the use medicine that reduces fevers);
• Other symptoms have improved; and
• You received two negative tests in a row, 24 hours apart.

Neither the EEOC nor the DFEH have specifically adopted the CDC’s guidelines.

Can employers require a doctor’s note for employees to return to work?

OSHA and the CDC provide guidance that employers should not ask for doctor’s notes but the EEOC’s guidance states that employers can require doctor’s notes, as well as employee testing before returning to work. The DFEH has not yet addressed this.

Face Covering Requirements Become the New Norm

Even while many jurisdictions are loosening restrictions on outdoor recreation, many are simultaneously extending their stay-at-home orders, while also requiring the general public to wear face coverings.

In one of the largest moves of the week, the six Bay Area counties and the city of Berkeley extended their stay-at-home order through May 31. San Diego County followed suit by extending its order indefinitely. More extensions are likely statewide, as Riverside, San Benito, Monterey, Santa Cruz, and Sonoma Counties all have orders expiring within the next few days.

With respect to face coverings, Riverside County announced today that it is extending its face-covering requirements for its residents until June 19, and Monterey County has also put one into effect. Effective tomorrow, San Diego County is requiring all members of the public to wear face covering indefinitely. Earlier this month, Los Angeles County put face-covering requirements in place for the general public on April 7, and the counties of San Francisco, Contra Costa, Marin, Alameda, San Mateo all implemented the same on April 17. San Benito and Santa Cruz Counties joined in on April 24.

Some jurisdictions, like Santa Clara, Orange, and Sacramento, have declined to implement general face covering requirements. But the trend toward face coverings becoming the “new normal” is firmly in place. Effective May 4, 2020, Santa Clara—which had been one of the last Counties in the Bay Area not to require coverings—issued a requirement for employees and customers of open businesses to wear coverings when in the facilities. Similarly, following the lead of several cities within its borders requiring face coverings, Orange County also recently began requiring essential workers to wear face coverings, while several cities within Orange County require all residents to wear face coverings in public.

Here’s a list counties that have announced guidance and rules on facial coverings, as well as some of the cities that have released their own stricter mandates:

• Beverly Hills: Effective April 10, everyone must wear facial coverings, including essential workers and residents who leave their homes for walks through their neighborhood. Those driving alone or with members of their households don’t need to wear coverings unless they lower their windows to interact with others such as first responders and food service employees. Click here for more information.
• Burbank: On April 8, the city proclaimed that essential workers and residents visiting essential businesses must wear face coverings. Click here for more information.
• Carson: In an April 9 order, the city declared that workers, residents and visitors must wear a face mask or covering over their nose and mouth while inside businesses and while outside or leaving their home.
• City of Costa Mesa: City of Costa Mesa Regulation No. 3 pursuant to Proclamation No. 2020-01 requires Costa Mesa residents and visitors to wear facial coverings when entering the geographic boundaries of the City or leaving their homes for essential business. It also requires essential businesses to require that employees wear facial coverings. The face mask or covering must be of sufficient size to cover the nose and mouth of the individual to assure the inhale or exhale of air through the mask or covering.
• City of Irvine: On April 10, the Irvine City Council held a special meeting to ratify an Executive Order requiring all retail personnel in the City of Irvine to wear face coverings. During the meeting, Councilmembers amended the order to add strong recommendations for all people in Irvine to wear masks outside their home, and for stores to cause their patrons to wear masks. Read the latest update and all amendments here.
• Long Beach: On April 10, the city announced an order that requires residents to wear facial coverings while shopping at grocery stores and other businesses. The city has partnered with the Long Beach Post to create a marketplace that connects local individuals and businesses with people looking to buy masks and facial coverings.
• City of Los Angeles: Effective April 10, essential workers and customers at grocery stores and other essential businesses are required to wear facial coverings. Click here for more information.
• Los Angeles County: In guidelines released on April 10, county officials asked everyone interacting with people who are not members of their households to wear facial coverings in public and private spaces.
• Orange County: Effective at 12 a.m. on Friday, April 24, 2020, all employees of any grocery store, pharmacy/drug store, convenience store, gas station, restaurant, food preparation establishment, or retail store in Orange County who may have contact with the public must wear a cloth face covering while at work.
• Pasadena: Customers who visit essential businesses must wear facial coverings over their nose and mouth. If they don’t, businesses can deny them service. Businesses must provide facial coverings to their workers by April 15. Click here for more information.
• Riverside County: After first recommending in late March that residents wear facial coverings when leaving home, county officials made it mandatory beginning April 4. Sheriff Chad Bianco has warned that the rule is “enforceable by fine, imprisonment, or both.”
• San Bernardino County: Residents must wear facial coverings when going outside. Drivers who are traveling alone or with members of their households don’t need to have them on unless they lower their window and interact with others.
• Seal Beach: In an April 11 Facebook post, the Seal Beach Police Department, said masks and other personal protective equipment are required for people who are out of their house or vehicle and are interacting with workers. Masks are not required while walking or exercising “since it is not essential business,” the message said.
• Ventura County: In an April 9 announcement, the county’s health officer urged residents to cover their mouth and nose with a cloth face covering if they plan to be around others. Click here for more on the county’s proclamation.

ERICA M. SOROSKY esorosky@ptwww.com (949) 851-7271	ERIN K. OYAMA eoyama@ptwww.com (949) 851-7288