COVID 19: Testing Employees and “No Shirt, No Shoes, No Mask – No Service” Policies.

COVID 19: Testing Employees and “No Shirt, No Shoes, No Mask – No Service” Policies. 

Employers are obligated to keep their employee safe under OSHA and other laws and regulations.  Many employers are questioning what precautions and measures they can take without running afoul of the ADA, the Rehabilitation Act, and other employee protective Laws.

According to the EEOC, there are certain new procedures and precautions employers can take during the time of this pandemic in addition to accommodations that employers must make for employees with disabilities.

The EEOC pandemic publication entitled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act”, answers common questions from employers during this time thus creating a guideline.

Employers that are open for business during this pandemic or are just now reopening may operate, but with new procedures. In efforts to keep the workplace and other employees safe, employers can and are encouraged to ask employees whether they may be experiencing symptoms associated with the COVID-19 virus. These symptoms include dry cough, fever, shortness of breath, sore throat and chills. Any other symptoms described by the CDC and other public health authorities may be considered as well. Employers are cautioned that not everyone who tests positive for COVID-19 will have a fever and asking the additional questions may be prudent. If an employee’s response resonates with any of the above listed symptoms, an employer has every right, indeed, some may argue, the obligation to send that employee home. And, the ADA allows employers to require a doctor’s note from employees who contracted COVID-19 or had symptoms of the virus before the employee is authorized to return to the workplace.

The ADA guidelines provide that employers may also measure their employee’s body temperature upon arrival to the workplace. But if the employer wishes to keep a log of employees’ temperatures, each employee’s temperature readings (i.e. private health information) must be kept in a separate confidential medical file for each employee. Employers are also allowed to administer COVID-19 tests to detect the virus in employees before any employee is allowed to enter into the workplace, but the test must be administered in a non-discriminatory manner.  In addition, if an employer decides to administer COVID-19 tests, it must make sure to be consistent and compliant with the ADA standard, thus making sure the tests are accurate. The EEOC advises employers to create alternative methods to consider false-positives or false-negative tests. The results of any test-taking, like the keeping of an employee temperature log, must be stored in a separate confidential medical file for each employee.

Further, if an employer is informed that an employee has contracted the COVID-19 virus, the employee may disclose the name of that employee to a public health agency in efforts to keep that employee and others safe and to facilitate contact tracing.  Employees may also require any staffing companies or contractors who will be entering or who have entered the employer’s workplace to inform the employer if they test employees and to promptly inform the employer is anyone in contact with the employer’s place of business tests positive for COVID-19, which would allow the employer to take precautions to determine if any of its own employees had contact with that temporary worker or vendor.

While employers are encouraged to conduct business in a way that allows them to continue the hiring and onboarding process, including by screening job applicants for symptoms of COVID-19 after, and only after the employer makes the applicant a conditional job offer. This is an ADA rule that applies whether the applicant may have a disability. If after screening a job applicant has symptoms of the virus or the virus itself, employers can: delay the applicant’s start date and/or withdraw a job offer if the applicant is needed to start work immediately. What an employer is not allowed to do however, is to use the COVID-19 issue as a false basis to discriminate against an employee or prospective employee in a protected class, including, for instance, postponing the start date or withdraw a job offer to any individual who may be pregnant or over the age of 65 because they are of higher risk of contracting COVID-19.

Next, employees with disabilities covered by the ADA who request reasonable accommodations from their employers must be granted those accommodations if they are absent of undue hardship for the employers. Undue hardship constitutes as any accommodation that would put the employer in a financial bind.  Employers are required, as are employees, to confer with each other to address reasonable accommodations.  Low cost accommodations or ones otherwise reasonable should be implemented in efforts to protect those with disabilities, including for instance installation of plexiglass or other barriers to keep employees at a safe distance from customers and other co-workers. Employers may ask questions to help determine how the accommodation the employee seeks will help the employee perform job duties efficiently.

Arguably, employers are required to protect employees from potential infection from customers as well.  Private employers may require customers to wear protective gear, such as face masks and gloves – “No Shirt, No Shoes, No Mask – No Service”.  In turn, customers have the right to not shop or do business with that employer.  These laws are changing fast though.  So, a better policy may be to ask a customer whether they are unable to wear a mask because of a disability and if yes, then engage in the interactive process with the customer to provide a possible alternative reasonable way to provide that customer the service, while also keeping employees and other customers save.

More details regarding these matters can be found here:

Other resources:

EEOC – U.S. Equal Employment Opportunity Commission

OSHA  – Occupational Safety and Health Administration

ADA – Americans with Disabilities Act

Rehabilitation Act – The Rehabilitation Act of 1973

Brittney Samuels worked on this client update too.  Thank you, Brittney.

For more information feel free to contact Dawn:



Attorneys admitted to practice in

California, New York, Colorado, Texas, Oregon and Hawaii


Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  While intended as information and educational, it is considered advertising under applicable various laws of some states, and as such, EC encourages you to call is to discuss these matters as they apply to you or your business.