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  • What Employers Should Know about Screening, Testing for COVID-19

    What Employers Should Know about Screening, Testing for COVID-19

     As businesses reopen, many employers have wondered what type of screening they may or should conduct for employees returning to work. In separate guidance documents, the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) have addressed questions about temperature screening, COVID-19 testing, and related issues concerning confidentiality and record-keeping. Here’s what you should know before implementing a screening or testing program.

    Temperature Screening

    Employers can lawfully check the body temperatures of employees entering the workplace. Generally, measuring an employee’s temperature is a medical exam, and the Americans with Disabilities Act (ADA) requires it to be “job-related and consistent with business necessity,” according to the EEOC. The exams meet the standard if they’re necessary to determine whether employees have a medical condition that would pose a “direct threat” to health or safety.

    Applying the standard to the COVID-19 pandemic, the EEOC has said employers may take steps to determine if employees entering the workplace have the virus because an infected individual will pose a direct threat to the health of others. Because the U.S. Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of the coronavirus and a temperature of greater than 100.4° F as one possible indicator of infection, employers may measure employees’ body temperatures. OSHA has noted nothing in the Occupational Safety and Health Act (OSH Act) or its regulations prohibits employer screening for COVID-19, including conducting temperature checks, which may be part of your more comprehensive plan for monitoring workers’ health during the pandemic.

    Both the EEOC and OSHA urge employers to act cautiously on the results. Even if individuals don’t have a fever, you shouldn’t presume they also don’t have the virus that causes COVID-19.

    Both agencies also set forth their respective requirements for recording temperature check results. The OSHA guidance explains employers aren’t required to make a record of temperatures when they screen workers but may instead conduct the reading in real time. If records are created by a physician, nurse, or other health care personnel (or a technician), they qualify as medical records under the OSH Act’s access to employee exposure and medical records standard, with retention mandated for the duration of employment plus 30 years and a confidentiality requirement.

    Even if the records aren’t covered under the OSH Act because they’re created by someone other than a physician, nurse, etc., the ADA’s requirements for maintaining medical information confidentially will apply to documentation of the temperature check results (such as a log of employee temperatures), along with a one-year record retention requirement. The OSHA guidance suggests an alternative: Instead of conducting on-site checks, you may choose to implement a program requiring employees to (1) conduct temperature checks and symptom monitoring at home before arriving for work and (2) stay at home if they have a fever or other signs of illness.

    COVID-19 Testing

    The EEOC and OSHA also agree employers can conduct a COVID-19 test to detect the presence of the virus. The EEOC’s reasoning is the same as for temperature checks: A test for the virus is a medical exam that’s “job-related and consistent with business necessity” because it may detect whether individuals entering the workplace have COVID-19 and pose a direct threat to others. The agency reminds employers that, consistent with the ADA standard, the tests must be accurate and reliable. OSHA adds there is no prohibition against such testing under the OSH Act. The record retention and confidentiality requirements are similar to those applying to the temperature checks.

    The EEOC also recently clarified its current position on antibody testing, which is different from testing for the virus. The agency relies in part on the CDC’s interim guidelines stating antibody tests shouldn’t be used to make decisions about returning persons to the workplace. Currently, the tests don’t meet the ADA’s “job related and consistent with business necessity” standard for medical exams or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to reenter the workplace isn’t allowed under the Act.

    The EEOC’s position makes some sense based on its rationale for condoning testing for the virus. Unlike with the viral testing, antibody testing reportedly identifies only if a person has already had the disease. Assuming at least some period of immunity from infection, the individual arguably isn’t putting his own or other employees’ health at risk. In other words, the scenario doesn’t fit the “direct threat” standard applied to viral testing. Nevertheless, the EEOC advised it will continue to monitor CDC recommendations and could update its position.

    General Principles

    If you choose to perform COVID-19 viral tests, temperature checks, or other symptom screening, the EEOC and OSHA guidance make clear the processes must be conducted on a nondiscriminatory and non-retaliatory basis. You can’t presume individuals who test negative for the virus one day or don’t have a temperature when arriving at work present no hazard to others in the workplace because they may acquire the virus later.

    Therefore, you should continue to implement policies and practices to prevent the transmission of COVID-19 in the workplace, such as good hygiene practices, social distancing, cleaning and disinfection, and workplace controls. The latter may include installing physical barriers or shields to separate workers, adding enhanced ventilation, allowing more teleworking, and limiting in-person meetings. Be sure employees are wearing appropriate face coverings, and provide personal protective equipment (PPE) in accordance with OSHA’s applicable standards.


    Article courtesy of BLR

    By Leslie A. Sammon, Axley Attorneys