Legal Considerations When Implementing Workplace COVID-19 Screenings

Legal Considerations When Implementing Workplace COVID-19 Screenings

Following on from yesterday's post, which offered a look at some considerations employers must keep in mind in terms of the practicalities of on site COVID-19 health screenings, there are, understandably, a number of employers concerned about the legalities of such screenings.

As mentioned in the previous post, some employees are likely to be upset by the whole process, and some may claim (often based on rumors they've heard or read on social media) that such processes are illegal. Which they are not, but there are certain legal challenges that have to be kept in mind.

Today's post will take a look at some of the most common and important to keep in mind.

What the EEOC Says About COVID-19 Workplace Health Screenings

As of April 2020, the EEOC updated its guidance on the Americans with Disabilities Act (ADA) and coronavirus, explaining that employers may screen employees for COVID-19 and that daily health screenings can be a part of that.

What is trickier is ensuring they are implemented in a way that is fair, and yes, legal. Here are some of the most important considerations employers and managers need to take on board as they plan their workplace reopening:

  • Temperature screening must be conducted on a nondiscriminatory basis, which likely means that all employees entering the worksite must be tested.
  • Assuming the results of such screenings are retained, they need to be retained as confidential medical records according to the ADA's requirements.
  • Any screening, test or inquiry that is broader than necessary to address the potential direct threat is prohibited by the ADA.
  • Employers will need to consider how to handle an employee's refusal to submit to a test, as the simple fact is that this is likely to happen. For example, the employer could bar access to the worksite for an employee who refuses to cooperate.
  • Employers should be aware that there may be an obligation under wage and hour laws to pay employees for time spent waiting to be screened, as well as time spent being screened.
  • Requiring employees to consent in writing to the screening, including, but not limited to, acknowledging that the process is in no way diagnostic is a must.
  • Ensuring that those conducting the screening behave appropriately. These should be no touch screenings and any questions should only be relevant to the screening.
  • Employers should be willing to talk to employees about existing health conditions. For example, autoimmune diseases such as lupus, rheumatoid arthritis, and inflammatory bowel disease all often result in higher than 'normal' temperatures. A doctor's note revealing such may need to be accepted.
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Perhaps most importantly employers need to consider what they will do if an employee does not 'pass' their screening. A temperature IS NOT a definitive sign of COVID-19, there are lots of reasons people get 'fevers'.

So you will need to decide your policy. Does an employee need to be tested for COVID-19 before returning to work? Who will be responsible for the cost of such a test? Will an employee be paid while waiting for test results or will they be furloughed to allow them to claim unemployment? These are areas it may be best to consult with legal counsel over before setting a policy.

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