Many employers are preparing for the need to return to work while the pandemic continues, necessitating advance planning to ensure its employees and the public in general remain healthy. The ADA classifies COVID-19 as a “direct threat.” Therefore, temperature scans, COVID-19 tests, and symptom monitoring during the pandemic are allowed because they are job-related and consistent with business necessity to protect employees. The most important thing for employers to do is to closely follow the CDC and state and local public health guidance.
Temperature Screening
The EEOC has explicitly stated that employers may measure employees’ body temperature. If an employer chooses to do so, there are a few important facts to remember.
- A person without a fever can still have COVID-19, so temperature checks alone cannot ensure a safe workplace;
- Employers need to be sure that they have a policy and process outlined that complies with state and local orders;
- The CDC recommends a 100.4 degree Fahrenheit threshold;
- Any policy should be clearly described and explained, including a screening area, safety measures, and social distancing as well as the consequences of an employee whose temperature exceeds the threshold;
Any employee administering a temperature check should be provided personal protective equipment (PPE). If you have the capability, a touchless thermometer should be used. Social distancing should be followed during the screening and everyone (employees, vendors, and visitors) should be scanned. The ideal location for scanning will be private and allow for social distancing. The EEOC allows employers to maintain a log of temperature check results, but records of the scans must be kept confidential and separate from an employee’s personnel file and should not be disclosed other than to a public health agency when the company learns an employee has COVID-19. Every state has its own temperature check laws and employers should consistently review state and local practices to confirm the most recent guidelines are being followed.
Testing
In addition to temperature checks, there will be increasing availability of active infection and antibody testing. The EEOC has again provided specific guidance stating that employers may require an employee to take a COVID-19 test before employees are permitted to enter the workplace. An employer may also refuse to hire an applicant who tests positive for COVID-19 or has the symptoms associated with it. Am employer may also withdraw a pending job offer when an employee is needed to start immediately, but has tested positive for COVID-19 or has symptoms thereof. An employer’s best practice is to document that there is an immediate need to fill the position for which an applicant is not hired due to COVID-19 symptoms, but should not prevent such applicants from applying in the future. Additionally, this should be applied consistently.
For current employees who test positive for COVID-19, there are a number of available causes of action for discrimination or retaliation under state and federal laws. Employers should have policies in place and consistently enforced. Distinction should be made between employees engaging in behavior that is risky, but not illegal (e.g. going to an open beach during quarantine) and engaging in illegal behavior (e.g. going to a closed beach during quarantine).
Employers can engage in some best practices to avoid discrimination claims, including training for managers in job interviews and conducting all medical testing in accordance with ADA guidelines and pursuant to a consistently-enforced, written policy based on CDC and government guidelines.
Monitoring Employee Health
Employers are also permitted to inquire about employees’ health as related to COVID-19 due to the “direct threat” status of COVID-19. Employers should implement policies requiring employees to promptly inform employers if they are diagnosed with COVID-19 and to stay at home. Employees should also be required to report when they have come in close contact with someone in the last 48 hours who has been diagnosed with COVID-19 as well as when employees experience COVID-19 symptoms. The policies should provide information for employees regarding what actions the employees should take and how they would be able to return to work.
In conducting health screenings, employers should avoid asking about an employee’s family members specifically and instead focus on generally whether the employee has had close contact with anyone who has tested positive for or has been diagnosed with COVID-19.
Employers should also monitor employees’ health on a regular basis with a formal process. This can be in the form of a health questionnaire or upon an employer’s reasonable belief, based on objective evidence, that an employee may be exhibiting COVID-19 related symptoms. All screening and decisions must be done in a consistent manner. Health inquiries should be limited to specific COVID-19 related symptoms, as identified by the WHO and/or CDC. Employers should attempt to distinguish these symptoms from generic cold and flu symptoms.
As with records of temperature checks, employers must treat all documentation relating to health screening as confidential. Depending on state, the storage of such information may also implicate data breach notifications.
Employers should be sure whether the time used for temperature checks, testing, and health screening is compensable and comply with all applicable wage and hour laws.
Some states and local municipalities are requiring regular screening of employees for COVID-19 symptoms, so it is important to be familiar with your state and local regulations and to consistently review the requirements to ensure policies remain compliant.
In evaluating screening and testing requirements, employers will need to consider who will perform the testing (e.g. HR, company nurse, self-test), where the screening/testing will take place, whether and how the results will be recorded and stored, and how much time the screening/testing will take to determine appropriate compensation.
Resources:
For Federal Guidance Regarding COVID-19 and the ADA, Rehabilitation Act, and Other Equal Employment Opportunity Laws:
https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
For Up to Date Information on Coronavirus Symptoms and Public Health Guidance:
https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html#cdc-chat-bot-open
https://www.who.int/emergencies/diseases/novel-coronavirus-2019
For California-Specific Guidance:
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx
https://www.labor.ca.gov/coronavirus2019/
https://www.dfeh.ca.gov/
For Local Sacramento County Guidance:
https://www.saccounty.net/COVID-19/Pages/default.aspx
For Local Orange County Guidance:
