How Much Information Might An Employer Request Of An Employee Who Calls In Sick Or Doesn’t Show Up In Order To Protect The Rest Of Its Workplace During The COVID-19 Pandemic?

An employer can always request some basic information from an employee that is calling in sick. If the employee calls in and says they got COVID, the employer may require certain pieces of information or evidence before the employee comes back into the workplace. For example, they can ask that the employee provide confirmation of a negative test or (as per current CDC guidelines) confirmation that the employee has been asymptomatic for the requisite number of days.

In a nutshell, the employer can require a negative test to come back to protect the rest of its workforce. Just like if you go out on sick leave and want to return back to work, they can require a doctor’s certification to know that you’re fit for duty to return back to work, so too can they require this sort of information to avoid liability. It’s for protecting the other people in the workplace but also protecting yourself. Therefore, they can require that type of information.

Again, if the information they request contains any type of medical content or diagnostic testing showing positive or negative, it must be held confidential by the employer and is still subject to privacy laws and HIPAA laws.

Is It Ever Allowed For An Employer To Request A Positive Test If Someone Says They Have COVID And Can’t Come Into Work? Is It Legal For An Employer To Require A Positive Test?

I have never seen an employer ask for evidence of a positive COVID diagnosis, but certainly they can. This is similar to other situations where people have to confirm medical reasons for absences. For instance, if you need emergency surgery and tell your boss you will require a week off, they can certainly request some official documentation of your surgery.

Therefore, though I have never seen it happen, I believe employers probably could ask for proof of a positive COVID diagnosis. While I have also never seen someone faking COVID to get off of work, I would not be surprised if it happens. There are certain benefits to saying you have COVID, including full pay leave in some cases. If you were to falsify evidence about that, it would certainly be grounds for termination. Therefore, the employer would be well within their rights to ask for proof when push comes to shove.

Usually, employees are quick to hand that information over, which makes employers more comfortable asking for it. I had a case once where an employee had a minor symptom that wasn’t necessarily related to COVID, and got tested, came back to work, and was still asymptomatic. When his test result came back a week later, it said that he was positive. As a result, his employer attempted to fire him, claiming he had gone to work after taking the test that he only found out a week later was positive.

There is an interesting dynamic at play here, but I think employers are, for the most part, trying to keep everyone safe and are leaning towards an abundance of caution and taking time off and giving employees that benefit of the doubt when they report a symptom.

For example, one symptom may be a stomachache. It could just be a regular stomachache, or it could be a COVID symptom. Happily, I mostly see that in response, employers are saying, “Go, get a test, go home for the day. Your job is still protected,” when in theory, they probably could say, “Well, if you don’t show up and you have stomach ache and you’re negative, we’re going to fire you because we can fire you for whatever reason”.

Thankfully, there is a kind of a give-and-take between employer and employee in this context, and it doesn’t seem to be too much of a problem at the moment. However, that could easily change at any given moment.

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