Like every business in America, you’ve been paying close attention to the announcements regarding state and local restrictions on businesses.
If you have determined that you can, at least to some degree, transition your employees back into the workplace, there are a lot of considerations that you need to work through.
Outside of following guidelines for employees you know have the virus, how can you protect your workforce without violating privacy and other laws? How do you determine whether you are following appropriate safety precautions at the same time that you avoid any sort of potential discriminatory action and without an outlay of excessive expenditures at a time when your business is likely suffering?
We will work through the most common actions and recommendations, including: (1) testing your employees at work for COVID-19, (2) taking temperatures when employees report to work, and (3) administering daily health questionnaires.
Can I Screen My Employees and/or Take Their Temperatures?
COVID-19 screening is accomplished by deploying employee questionnaires and taking temperature readings. While these methods cannot determine whether an employee is actually COVID-19 positive or negative, they do give employers the ability to make informed decisions about the level of risk involved in allowing each employee to return to work.
COVID-19 Employee Health Questionnaires
Questionnaires ask employees whether they are suffering from any of the symptoms of COVD-19 or are otherwise at-risk of carrying or transmitting the disease. Depending on their answers, employers can decide whether the employees are higher or lower risks.
Screening questionnaires are permitted under current law, so long as they are conducted correctly and in accordance with published guidelines. For example, the Americans with Disabilities Act (ADA) allows employers to make medical inquiries if it is necessary to exclude employees from the workplace who would pose a direct threat to the health and safety of others.
Because the best available guidance is that those with risk factors or symptoms of COVID-19 are a direct threat to safety, employers are in line with the ADA in using screenings. Employers should, however, administer screenings even-handedly and follow current advice from public health authorities in determining who to allow to enter the worksite based on screening responses.
Taking Employees Temperatures at Work
Some businesses are also choosing to take employees’ temperatures before they enter the worksite and denying worksite access to employees who have a fever because they have a symptom of COVID-19. The CDC advises that employees who exhibit symptoms of COVID-19 should leave the workplace, and the ADA does not prevent employers from following that guidance.
Employers should be aware, however, that people with COVID-19 do not necessarily exhibit any or all of the symptoms. Therefore, temperature readings alone are unlikely to be enough to protect your workforce. Moreover, any records related to temperatures, such as temperature logs, must be treated as confidential health records and kept separate from employees’ personnel files.
Finally, employers should be careful that any action they take is evenhanded. Although screening and temperature readings are technically allowed under employment law at this time, unlawful disparate treatment remains a concern. If only some employees are required to undergo screening or temperature readings, for example, a business could face a disparate treatment claim.
Similar claims might also arise if employees who report similar symptoms or risk factors are treated differently from one another.
Can I Test My Employees at Work for COVID-19?
In many cases, the answer is yes.
The EEOC has issued guidance explaining that employers may choose to administer COVID-19 tests to employees before they are allowed to enter the workplace. COVID-19 testing at work is done in order to determine whether employees have the virus and are therefore a threat to the health and safety of the workplace. Employers should recognize, however, that COVID-19 testing, which can include both PCR and antibody tests, has limitations.
PCR tests, for example, only reveal a person’s current COVID-positive or negative status and do not guarantee that an employee will not become exposed to the virus after the test. Accordingly, if used, testing is only one part of a comprehensive Return-to-Work plan.
If your organization decides to test employees, all medical information must be maintained as confidential medical records in compliance with the ADA. In order to ensure that your organization is following appropriate procedures of maintaining the information as confidential and that your employees understand and are comfortable with your testing policy, you should adopt and distribute a comprehensive return-to-work policy to your employees.
The return-to-work policy should describe how your company plans to administer tests and what procedures employees need to follow. Your policy should also include an acknowledgement and consent form that employees should sign and date to confirm that they understand and accept the terms of the policy. You must also store all employee medical records separately from their personnel files.
To be consistent with ADA standards, employers that choose to administer tests need to ensure that they are accurate and reliable. Guidance from the FDA, the CDC, or other public health authorities can inform employers about the reliability of various test options and help employers weigh that information in determining what additional steps should be taken to ensure workplace safety.
For more information on required policies by state, check out our policy map!
*This information is specific to the United States. Employers contemplating a return to the workplace, particularly in the EU, should consult guidelines in the appropriate jurisdictions.
DISCLAIMER: This publication has been prepared by SixFifty to provide information of interest to our readers regarding COVID-19. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. SixFifty does not provide legal advice.
Written by Marie Kulbeth
Marie Kulbeth is a Co-Founder and General Counsel of SixFifty, and the co-director of BYU LawX, a legal design lab dedicated to solving access to justice problems. She works to make the law straightforward for everyone, regardless of education level or income. Marie keeps her passion for equitable, accessible legal services at the forefront of her career. Her role as...
Full Bio and other articles by Marie Kulbeth
About The Author: Marie Kulbeth
Marie Kulbeth is a Co-Founder and General Counsel of SixFifty, and the co-director of BYU LawX, a legal design lab dedicated to solving access to justice problems. She works to make the law straightforward for everyone, regardless of education level or income.
Marie keeps her passion for equitable, accessible legal services at the forefront of her career. Her role as General Counsel allows her to field-test SixFifty’s products to ensure they’ll work for customers.
Education and Experience
Marie attended Brigham Young University, and spent most of her undergrad studying International Politics and Development. It was during a field study in South Africa that she first decided to become a lawyer. As she researched the new South African constitution and worked with community organizers, Marie became fascinated with the development of the rule of law and how it in turn fosters economic development.
After undergrad, she attended BYU Law, where she continued focusing on improving equity, specifically through access to justice. She spent time interning with a nonprofit at the Human Rights Council in Geneva and with the United Nations International Tribunal for the Rwandan Genocide. At home, she interned with Catholic Charities, focusing on supporting asylum cases. Marie’s work with communities and governments across the globe broadened her understanding of how the law can either uplift or further harm underserved populations.
After law school, Marie worked as a judicial law clerk for the US Fifth Circuit Court of Appeals. She then practiced commercial litigation in Salt Lake City before returning to BYU Law, where she became an Assistant Dean. During her time at BYU Law, Marie built a diversity recruiting program and a storytelling program. Although she has left academia, she continues to keep a hand in by teaching a legal design class at BYU Law School and an undergraduate international politics class that focuses on development and diplomacy at BYU’s Kennedy Center. Both courses help students increase their community engagement and use their skills to create change.
Achievements with SixFifty
Marie’s work with both SixFifty and LawX focuses on making the law less complicated and
more equitable for both companies and individuals.
Marie’s legal specialty is privacy. She has additional focus areas in legal technology; diversity, equity and inclusion; employment; and compliance. She enjoys the opportunity to build products with the legal product team, including pro bono products. This allows her to work with communities she cares about – and complements the work she continues to do at BYU.
With Marie’s guidance and experience, SixFifty is able to offer privacy products that allow even small companies to easily comply with global privacy restrictions. Her passion for making the law accessible to everyone is evident in our pro bono products, which help individuals access free legal help for common issues.
Get to Know Marie
When she’s not helping to advance SixFifty’s mission, Marie travels whenever she can. Keep your eyes open and you may find her anywhere in the world – one of her favorite trips was a seven-day motorbike tour of northern Thailand. She especially loves to canyoneer in southern Utah and explore wilderness areas.
Marie also continues her community development and education work. She is on the board of several nonprofits, including one that runs primary schools in South Sudan and the Utah Tribal Relief Foundation. She recently joined the board of the Mountainland Association of Governments, which focuses on making loans to entrepreneurs from underserved communities who lack access to traditional funding. She’s also a Model UN legend! She is the Executive Director of BYUMUN, Utah’s premier high school Model United Nations learning conference.
Marie loves podcasts and will nerd out on anything related to the law, the history of the English language, and anything done by the people at Radiolab.
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