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.
Bringing employees back carries some risk for your employees, for the company, and potentially for the community. Recently, a business in Utah ignored guidelines and told employees who had tested positive for COVID-19 and employees who had interacted with them to return to work before their recommended quarantine periods had ended. Within a matter of weeks, 48% of the employees had tested positive for the virus.
In addition to the various types of liability that a business may now have to its employees, one organization significantly contributed to community spread and, in an effort to increase productivity by keeping employees at the worksite, actually reduced productivity because the majority of its workforce caught the illness.
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...
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