As businesses re-open, some of the questions employers have involve 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 regarding temperature screening, COVID-19 testing, and related issues concerning confidentiality and recordkeeping. The guidance documents can be found here: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and OSHA Guidance on Returning to Work.
Here is what employers should know when considering whether, and how, to implement screening or testing.
Temperature Screening
Employers can lawfully conduct temperature checks of employees entering the workplace. The EEOC explains that generally, measuring an employee’s body temperature is a medical examination, and as such, the Americans with Disabilities Act requires that the exam be “job-related and consistent with business necessity.” Medical exams meet this standard if they are necessary to determine whether employees have a medical condition that would pose a “direct threat” to health or safety. Applying this standard to the current circumstances of the COVID-19 pandemic, the EEOC has stated that employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Because the Centers for Disease Control (CDC) and state/local health authorities have acknowledged community spread of COVID-19, and a temperature of greater than 100.4° F as one possible indicator of infection, employers may measure employees’ body temperature. OSHA has noted that nothing in the OSH Act or OSHA regulations prohibits employer screening for COVID-19, including conducting temperature checks, and such checks may be part of a more comprehensive employer plan for monitoring worker health during the pandemic.
Both the EEOC and OSHA caution that employers should act cautiously on results and should not presume that individuals who do not have a fever do not have SARS-CoV-2, the virus that causes COVID-19. Both agencies also set forth their respective requirements relating to recording temperature check results. The OSHA guidance explains that employers are not required to make a record of temperatures when they screen workers but may instead conduct temperature 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 Act’s Access to Employee Exposure and Medical Records standard, with a retention requirement of the duration of employment plus 30 years and a confidentiality requirement. Even if records are not covered under the OSH Act requirements because they are created by someone other than a physician, nurse, etc., the Americans with Disabilities Act’s requirements for maintaining medical information confidentially will apply to records of the results of temperature checks (like a log of employee temperatures), along with a one-year record retention requirement. The OSHA guidance offers an alternative for consideration, suggesting that instead of conducting on-site checks, employers may choose to implement a program requiring employees to conduct temperature checks and symptom monitoring at home before arriving for work, and to stay at home if they have a fever of other signs or symptoms of illness.
COVID-19 Testing
The EEOC and OSHA also agree that employers can conduct a COVID-19 test to detect the presence of the SARS-CoV-2 virus. The EEOC’s reasoning is the same as for temperature checks. A test for the virus is a medical examination that is “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 the health of others. The EEOC reminds employers that, consistent with the ADA standard, tests must be accurate and reliable. OSHA adds that there is no prohibition to such testing under the OSH Act. Record retention and confidentiality requirements similar to those applying to temperature checks also apply to testing for the SARS-CoV-2 virus.
The EEOC also recently clarified its current position regarding antibody testing, which is different from testing for the virus. The EEOC relies, in part, on the CDC’s interim guidelines stating that antibody tests should not be used to make decisions about returning persons to the workplace. The EEOC states that at this time an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.
The EEOC’s position makes some sense according to its rationale for condoning testing for the virus. Unlike viral testing, from what is currently understood, antibody testing only identifies if a person has already had the disease and, therefore, does not put their own health at risk and arguably does not put other employees’ health at risk, assuming at least some period of immunity from re-infection. In other words, it does not 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 in response to changes in CDC recommendations.
General Principles
The guidance documents issued by the EEOC and the OSHA make clear that if employers choose to conduct COVID-19 viral tests, temperature checks, or other symptom screening, the testing and screening must be conducted on a non-discriminatory and non-retaliatory basis. The documents also caution employers that they cannot presume individuals who test negative for the virus one day or who do not have a temperature when arriving at work present no hazard to others in the workplace because they may acquire the virus later. Employers should, therefore, continue to implement policies and practices to prevent transmission of COVID-19 in the workplace, such as good hygiene practices, social distancing, cleaning and disinfection, and workplace controls. Workplace controls may include physical barriers/shields to separate workers, enhanced ventilation, teleworking and limiting in person meetings, ensuring employees wear appropriate face coverings, and providing personal protective equipment (PPE) in accordance with applicable OSHA standards.