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Summary of Answers at 8 on November 18th

IMPORTANT: There will be no Answers at 8 webcast on the following dates due to the holiday schedule:

  • November 25th
  • December 23rd
  • December 30th  

Legal Updates

Reminder:  Phase 3 in NC has been extended and indoor gatherings are limited to 10 people. There is some flexibility related to work meetings.

Also, there was an update on the COVID close contact guidance put out by the CDC several weeks ago. The guidance now includes 15 minutes of close contact within six feet (masks or no masks) over a 24-hour period.

COVID-19 Safety Updates

There is evidence that you can get COVID-19 again after testing positive since antibody counts fall over a period of several months. Currently, for a three-month period following a positive result, you are not required to quarantine for close contact. After that time, even if you have tested positive in the past, you must quarantine each time you have close contact with a COVID-19 case.

The amount of COVID that you are exposed to over time matters, which is why every contact counts.

Being 6 feet apart is a first step, but ventilation is so important. If you have a poorly ventilated indoor area with a good number of people inside for a substantial period of time, without face coverings, you are not putting people in a good situation. There are tools showing that the virus stays in the air and accumulates to eventually spread throughout the room. Face coverings have recently been determined to protect the wearer, not just others, but this is not a complete guarantee that the virus will not spread in tight conditions.

The US has the most cases it has ever had, and they continue to rise. The death count is now at over 230,000.

Review of Medical Inquiries and Exams Under the ADA

Pre-Offer: None permitted.

Employers can show the employee the job description and ask them if they can do the job with or without reasonable accommodation. (Unless “No”, further discussion should be postponed.)

Post-Offer (Pre-Employment): Consistent exams per role are allowed.

The only rule is that you do the same exam for anyone in a particular job or role; however, bear in mind that GINA (Genetic Information Discrimination Act) and other anti-discrimination laws – including the ADA – still apply.

Only do exams or inquiries with a specific, job-related purpose in mind.

Drug screenings are fine; it’s best to work with an MRO so you do not see irrelevant prescription information. Otherwise, once you have collected information, the employee may feel that you used that information for other purposes should things “go south.”

During Employment: Exams/inquiries must be job related and consistent with business necessity due to:

  • an employee will be unable to perform the essential functions his or her job because of a medical condition; or,
  • reasonable concerns that the employee will pose a direct threat because of a medical condition.

In addition, exams and inquiries are permitted in the case of:

  • Federally or state mandated tests, such as the DOT physical
  • Random drug tests
  • When discussing reasonable accommodations to verify a condition that is not obvious
  • Voluntary health questions for purposes such as wellness programs
  • For affirmative action purposes – to track hiring of those with disabling conditions, for example

For specifics about when to require an exam and when a safety concern would require a medical exam, listen to the recording of this session.

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