As states lift stay-at-home orders and employees begin to return to their regular worksites, one issue that many employers face is how to monitor employees for symptoms of COVID-19 in order to minimize the possibility of exposure and transmission in the workplace. The Equal Employment Opportunity Commission (EEOC) has provided guidance acknowledging that employers may screen for COVID-19 and its symptoms, including testing for the virus and taking employees’ temperatures in response to the pandemic, clearing legal concerns about whether such inquiries are permissible in light of anti-discrimination statutes.
Health screening is often part of an employer’s broader pandemic preparedness plan, but it can also be required in certain jurisdictions. For example, Indiana’s Executive Order 20-26, Roadmap to Reopen for Hoosiers, Businesses and State Government requires all employers to develop a plan to institute measures and safeguards to ensure a safe environment for employees and others, including instituting a health screening process. The Ohio Department of Public Health Director’s Stay Safe Order directs employers to consider encouraging employees to conduct a self-assessment each day for COVID-19 symptoms and provides guidance regarding employee screening. Minnesota requires all employers to develop a COVID-19 Preparedness Plan, which must include policies and procedures for employee health screenings that prevent sick workers from entering the workplace. Illinois’ Department of Public Health offers a form to assist employee self-monitoring at home, or for employers to conduct symptom screening at the workplace.
What should employers consider as they deliberate whether to implement policies screening employees for COVID-19 or its symptoms? Here are some important practical and legal considerations to avoid pitfalls as employers work to keep their workforce and community safe by monitoring employee health.
- Develop a Plan. Your plan should be informed not only by your state’s specific order requirements, but also by CDC guidelines, OSHA standards, and applicable local law. Be aware that different obligations may apply depending upon the nature of your industry, with heightened obligations for employees working in high or very high-risk settings, such as health care, long-term care facilities, and first responders. The level of risk depends in part on the requirement for repeated or extended contact with persons known or suspected of being infected with SARS-CoV-2 as we previously addressed here. In developing a plan, employers should work with experts to assign risk levels to their businesses. Different risk levels may apply to specific job tasks within businesses.
- Carefully Consider Who Will Conduct Any Screening. Some employer policies require that employees self-monitor their health symptoms and take their temperature on a daily basis before coming to work, while other employers have personnel actively monitoring symptoms and conducting temperature checks. As an alternative to using their own personnel, employers can consider using third-party vendors to provide screening. If you are conducting temperature checks, ensure that responsible personnel have appropriate training, including on the use of Personal Protective Equipment (PPE); the use of personnel with medical background and training is preferable. As testing options for the virus itself become more widely available, employers will also need to ensure that any testing methods they use are safe and accurate, and administered in a way that is consistent with all applicable instructions and technical requirements. EEOC has also suggested that employers look to guidance from the CDC and the U.S. Food and Drug Administration as testing capabilities develop.
- Ensure that Any Screening is Conducted in an Appropriate Location. Ideally, employee screening should take place before employees enter the workplace, and any screening location should allow employees to remain socially distanced from one another to limit the number of close contacts and ensure privacy during the screening itself. For example, some screening has been conducted in drive-through kiosks to allow employees to remain in their private vehicles to limit potential exposure during the screening process. This method can also support privacy. Employers should avoid having large number of employees congregating together while awaiting screening at the beginning of a shift, so employers may want to consider staggering start times. In addition, employers should ensure that the screening location does not expose confidential health information to other employees. When conducting health screenings, consider the space that will be used, and determine if any engineering controls or PPE are required to safely conduct the screenings without exposing the screener to potential risks:
Socially Distanced: If the screener is able to conduct the screen using social distancing (at least six feet between individuals), then the screener can ask each employee to confirm that the employee has taken his/her temperature, that it is less than 100.4 degrees, and that the employee is not experiencing any one or more of the specific symptoms associated with COVID-19. The screener can also make a visual inspection of each employee for signs of illness, including flushed cheeks or fatigue.
Barrier/Partition Controls: When social distancing is not possible, employers should use a physical barrier, such as a glass or plastic window or partition that can protect the screener’s face and mucous membranes. If conducting temperature checks, a single pair of disposable gloves should be used for each screening and the screener should reach around the partition or through the window, ensuring that the screener’s face stays behind the barrier at all times during the screening.
Personal Protective Equipment: If social distance or barrier controls cannot be implemented during screening, PPE can be used when the screener is within six feet of an employee during screening. However, reliance on PPE can be less effective and difficult to implement given shortages and training requirements. PPE should include a facemask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), a single pair of disposable gloves for each screening, and a gown could be considered if extensive contact with an employee is anticipated.
- Develop Protocols for Screeners. Upon arrival and after each screening, the screener should wash hands with soap and water for at least 20 seconds or, if soap and water are not available, use hand sanitizer with at least 60% alcohol. If performing a temperature check on multiple individuals, use a clean pair of gloves for each employee screened and clean the thermometer between each check. If non-contact thermometers are used, clean and disinfect them according to the manufacturer’s instructions and facility policies.
- Protect (or Limit the Collection of) Confidential Medical Information. Consideration should be given to the method of documenting the results of the screening because, depending upon what specific information has been recorded, employers may find themselves in possession of confidential employee health information. As an alternative, consider documenting only employees who did not pass the screening, the reason for failing the screening, and the resulting action taken, by date and time. Any confidential health information should be maintained separately from personnel files in secured files with restricted access. If a contracted health care provider will conduct the screening, employers should work with the contractor in advance of commencing screening to agree on process and forms for sharing the limited information that is necessary in order for the employer to handle its human resources processes, including its remote work or leave policies and return to work protocol.
- Develop a Return to Work Protocol. Employers should develop and document response options not only for what to do when an employee fails the symptom or temperature screen, but also for follow up with the employee about whether a suspected COVID-19 diagnosis was confirmed, any resulting action the employer should take as a result of a confirmed diagnosis, and what criteria employees need to meet in order to return to the workplace after either symptoms or a confirmed COVID-19 diagnosis.
- Consistently Apply the Policy In a Non-Discriminatory Manner. Employers should determine in advance which employees will be subject to screening and ensure that all screening requirements are applied to all employees within this group (such as by group risk level), regardless of position or title. In addition, visitors to the employer premises should be screened, and should not be permitted access (similar to employees) if they have exhibited COVID-19 symptoms. For example, CDC guidance for schools and child care centers reopening includes the screening of both employees and students upon arrival. While all child caretakers and students should be screened, a different standard might apply to a group of administrative employees who may work from a low-risk office setting using social distancing measures and no exposure to child care staff or students.
- Compensate Employees for Time. Employers should ensure that they are compensating non-exempt employees for time spent on any screening, including wait time, to avoid running afoul of wage and hour laws. In addition, employers must comply with the Families First Coronavirus Response Act (summary available here) if employees take time off work as a result of a COVID-19 diagnosis or a directive by a health care provider to self-quarantine.
- Communicate the Plan and Policy to Employees. Employers should provide employees with information regarding any testing, symptom screening, or temperature check, including any applicable employer policies, in advance of their implementation. Employers should consider whether any posting regarding information collection is required by state or local law.
While the EEOC has expressly indicated that testing and symptom screening are permissible in light of the COVID-19 virus, any testing or screening of employees should be well-considered in light of the employer’s workforce and industry.
For guidance on these and other return-to-work issues, please contact any member of Taft’s Employment & Labor Relations group or the Evolving Workplace Task Force. If you are a health care provider engaged in screening and monitoring employee health and have questions please contact a member of Taft’s Health & Life Sciences group or the Evolving Workplace Task Force.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.