FAQs: Employing Household Workers During and After the COVID-19 Pandemic

Apr 28, 2020 | COVID-19, Hiring an Employee, Household Employer Policies

household employment during covid 19 pandemic

If you plan to have an employee in your home during or after the COVID-19 pandemic, you may have health and safety concerns. Here are some FAQs on employing and hiring workers during an unprecedented time.

If you continue to have a nanny or other employees work in your home or, perhaps you’re bringing back your household worker, you may have questions and concerns about health and safety issues. Here are a few FAQs on employing and hiring someone in your home during and after the coronavirus pandemic.

For more information, also visit our COVID-19 Resources for Household Employers.

Household Employer Guidance and Action Steps

The U.S. Equal Employment Opportunity Commission’s pandemic guidance clarifies that household employers may:

  • Ask employees if they have COVID-19 symptoms;
  • Require employees to stay home (and to provide medical notes before returning to work) if they have COVID-19 symptoms; and
  • Screen applicants for COVID-19 symptoms after making conditional job offers.

Household employers should follow the most current guidelines and suggestions for maintaining workplace safety, as issued by the Centers for Disease Control and Prevention (CDC) and any applicable state or local health agencies.

While household employers are not subject to the American with Disabilities Act (ADA), you should observe all applicable emergency workplace safety guidelines. Household employers may be subject to similar rules under applicable state or local laws.

Disability-Related Inquiries and Medical Exams

How much information may a household employer request from an employee who calls in sick during the COVID-19 pandemic?

During a pandemic, household employers may ask their employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record.

When screening employees entering their home during this time, may a household employer only ask employees about the COVID-19 symptoms EEOC has identified as examples, or may it ask about any symptoms identified by public health authorities as associated with COVID-19?

As public health authorities and doctors learn more about COVID-19, they may expand the list of associated symptoms. Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease. These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

When may a household employer take employees’ body temperature during the COVID-19 pandemic?

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/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.

May household employers require employees to stay home if they have COVID-19 symptoms?

Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace.

When an employee returns to work, may a household employer require doctors’ notes certifying their fitness for duty?

Yes. These inquiries are permitted either because they would not be disability-related (or would be justified under the ADA standards for disability-related inquiries). As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary. For example, you could rely on local clinics to provide a form, stamp, or e-mail to certify that an individual does not have the pandemic virus.

May a household employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting an employee to enter their home?

Any mandatory medical test of employees should be “job-related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, household employers may take 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 a household employer may choose to administer COVID-19 testing to employees before they enter their home to determine if they have the virus.

You should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Confidentiality of Medical Information

Should a household employer store in existing medical files information it obtains related to COVID-19, including the results of taking an employee’s temperature or the employee’s self-identification as having this disease, or must the employer create a new medical file system solely for this information?

The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. While household employers are not subject to the ADA, this would be a good practice to follow. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that they have the disease or suspects they have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.

If a household employer requires their employees to have a daily temperature check before entering the home, may the employer maintain a log of the results?

Yes. The employer needs to maintain the confidentiality of this information.

May a household employer disclose the name of an employee to a public health agency when it learns that the employee has COVID-19?

Yes.

Hiring and Onboarding

May a family ask COVID-19 related questions while interviewing job candidates?

Families should not ask job candidates whether they have had COVID-19 during the interview process. They cannot ask if they have had COVID-19 because it is an illness that is considered a disability and the interviewer’s knowledge of the disability could sway their decision to hire. Or even if it did not, it is protected information that should not be asked or provided in an interview.

If a family is hiring, may it screen applicants for COVID-19 symptoms?

Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer.

May a household employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?

Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.

May a household employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?

Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.

May a household employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?

Based on current CDC guidance, this individual cannot safely enter the workplace. Therefore, the employer may withdraw the job offer.

May a household employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19?

No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, you can discuss with them if they would like to postpone their start date.

Return to Work

As government stay-at-home orders and other restrictions are modified or lifted in your area, how will household employers know what steps they can take to screen employees for COVID-19 when entering the workplace?

Household employers can make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.

Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers can implement screening that is consistent with advice from the CDC and public health authorities for your type of workplace at that time. For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of employees entering your home.

May a household employer require returning workers to wear personal protective gear and engage in infection control practices?

An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols).

However, where an employee with a disability needs a related reasonable accommodation under the ADA (such as nonlatex gloves or gowns designed for individuals who use wheelchairs) or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the employer under the ADA or Title VII. This is a household employment best practice and not a legal requirement as household employers are not covered by the ADA.

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