Employers may now conduct mandatory COVID-19 screenings before allowing employees back into the workplace, according to new guidance issued on April 23, 2020 from the U.S. Equal Employment Opportunity Commission (EEOC).
In a dramatic expansion from its prior guidance regarding temperature testing, employers may now screen employees for COVID-19 so long as: (1) the testing is job-related and consistent with business necessity, and (2) efforts are made to ensure the accuracy and reliability of the testing. In response to the EEOC’s new guidelines, companies such as retail giant Amazon have already begun work on a pilot, in-house coronavirus testing program for its warehouse employees.
Though the implementation of ever-changing medical testing in the workplace will necessarily raise concerns for employers of all stripes, companies should remain mindful of the following considerations as they work to protect their employees and curb the spread of COVID-19 in the workplace:
Choosing a Type of Test. Employers who decide to screen employees returning to the workplace will need to decide whether to implement temperature and/or diagnostic testing. Many vendors in the marketplace offer cost-efficient devices for taking employee temperatures. For employers who choose diagnostic testing, the U.S. Food and Drug Administration (FDA) has provided guidance to assist employers determine the accuracy and reliability of proposed testing, which is in flux. While Governor Newsom maintains that there are sufficient COVID-19 tests for all residents – healthy or sick – those tests have been hard to come by.
Identifying Testing Logistics. Ideally, employers should identify and implement testing policies before employees return to work. While not expressly stated in the EEOC guidelines, any testing (temperature or otherwise) should be conducted by medical professionals whenever possible. Employers should adopt an equally applied, uniform testing policy in a given workplace, and maintain a centralized log of testing records. Employers should consult with legal counsel regarding the compensation of employees for their time spent waiting for and participating in temperature and diagnostic screenings.
Handling Positive Test Results. Understanding the limitations surrounding COVID-19 testing generally, employers will soon be faced with the decision of “what to do” with an employee who has tested positive for COVID-19 but has already returned to the workplace. The Center for Disease Control and Prevention (CDC) has recommended that employees who exhibit a temperature at or in excess of 100.4° Fahrenheit, or other signs of COVID-19, should leave the workplace and self-isolate. Correspondingly, employers may require an employee who has previously tested positive for COVID-19 to produce documentation from a doctor or other medical professional certifying that the employee does not have the coronavirus upon their return to the workplace.
Maintaining the Confidentiality of Employee Test Information. As mandatory COVID-19 testing becomes ubiquitous in the workplace, employers will soon find themselves in possession of a wealth of confidential employee medical information. Under the Americans with Disabilities Act (ADA), all medical information about a particular employee should be stored separately from the employee’s personnel file. The ADA’s medical confidentiality requirements apply both to statements from an employee that they have or may have coronavirus, and to a company’s log of temperature and/or testing results for an employee.
Questions about COVID-19 and the workplace? Contact the Hirschfeld Kraemer lawyer who normally provides your legal advice, or you can reach out to Adam Maldonado in the San Francisco office, firstname.lastname@example.org, (415) 835-9075.
Did you miss previous posts in our Planning For The Rebound series? Click on the links below:
Step 1 – Requirements For Returning To The Workplace
Step 2 – Do I Have To Bring Back Furloughed or Laid-Off Employees?
Step 3 – Do Employers Need to Bring Back Under-Performers?
Step 4 – Ready To Go Back To Work? Not So Fast …
For additional employer-focused information about COVID-19:
Click here to see the Hirschfeld Kraemer EMPLOYER’S GUIDE TO CORONAVIRUS