As COVID-related restrictions loosen, many CHC participants are welcoming direct care workers (DCWs) back into their home. However, because the risk of COVID-19 infection is still a threat, participants may want to obtain additional information from their DCWs to protect themselves and others with whom they come into contact. CHC participants, whether they use agency model for DCWs or whether they serve as joint employers with Public Partnerships LLC (PPL) for their DCWs, need to be careful about how they ask DCWs about COVID-19 exposure because some questions may run afoul of laws that protect workers. CHC Participants serving as joint employers especially need to be mindful of laws that prohibit discrimination against employees with disabilities or perceived to have disabilities because of symptoms suggestive of COVID-19.
Below are some suggestions about what you can and cannot ask your DCWs. Please note that this is general information and does not constitute legal advice.
Can I ask my DCW if they are available to work during the pandemic or if they have any conditions that make them unable to come back to work?
Yes. However, it is important to avoid questions about specific illnesses, conditions, or disabilities as this could be a violation of disability discrimination laws. It is permissible to ask if they feel comfortable returning to work.
Can I ask my DCW if they are experiencing symptoms of COVID-19?
Yes, it is okay to ask if direct care workers have experienced symptoms associated with COVID-19, which include fever, chills, cough, shortness of breath, and sore throat. For example, you could use a questionnaire that asks “Have you experienced any of the following symptoms . . .” However, you should not ask employees to divulge specific diagnoses. Also, screening for symptoms must be conducted in a non-discriminatory manner. Screen all employees in the same way and do not selectively screen some employees, but not others. Finally, if you keep records of screenings, the information received must be kept confidential and kept separate from your employee’s personnel file.
Note that questions about symptoms related to COVID-19 are permitted because of the pandemic. Normally such questions would be prohibited and asking questions about symptoms unrelated to COVID continues to be prohibited.
Can I ask my DCW if they have been in contact with anyone who has tested positive for COVID-19?
Yes, questions about whether a DCW encountered someone who tested positive for or may have been exposed to COVID-19 are permissible. However, you cannot ask specific questions about with whom they have come in contact or their diagnoses.
Can I ask my DCWs if they have travelled recently? Can I ask where they have travelled to if they have travelled?
Yes, but the questions must be asked in a nondiscriminatory manner. For example, you cannot ask questions based on the ethnicity of an employee and you should ask all employees – do not single out specific employees. You can ask employee to complete a health questionnaire screening that asks general questions about recent travel history (i.e., if travel occurred or when the travel occurred).
Can I ask my DCW to undergo a temperature check?
Yes, temperature checks are allowed during the COVID-19 pandemic. However, not all people with COVID-19 experience a fever. As with questionnaires, temperature checks cannot be required selectively and should be equally applied to all employees. Any records of the temperature checks must be kept confidential and kept separate from the employee’s personnel file.
Can I ask my DCW to undergo a COVID-19 test?
CHC Participants serving as joint employers can ask DCW employees to have a COVID-19 test and ask to see the results because the virus poses a direct threat to your health and others in your household. However, guidance is unclear about whether employers have to pay for the test and whether workers can get paid for time spent trying to get tested.
Can I ask my DCW to leave if they are sick?
Yes, you can ask a sick DCW to leave or stay home while they are experiencing symptoms associated with COVID-19, in keeping with CDC guidelines.
Can I ask my DCW for a doctor’s note or certification to return to work?
CHC Participants serving as joint employers can ask for this. However, whatever is received must be kept confidential and separate from personnel files. Keep in mind that doctors are not seeing as many patients for non-serious illnesses which may make it difficult for your employee to get a doctor’s note. CHC Participants using agency model for DCW may not be entitled to see the doctor’s note or certificate.
Can I ask my DCW to follow extra infection control practices when they come to work, such as washing hands or using Personal Protective Equipment (PPE)?
Yes. CHC Participants serving as joint employers can ask employees to follow infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue disposal. You may also ask your employees wear PPE, such as face masks, gloves, and gowns. These extra practices do not implicate anti-discrimination laws. Note, however, that if an employee with a disability needs reasonable accommodations (such as latex-free gloves), you should work with PPL to provide these.