Are employers required to screen employees for COVID-19?

(comments: 0)

iStock-1215796926 (1)

As schools and businesses look toward reopening, many have considered - either through state or local requirements or organizational preference - how best to institute daily COVID-19 health screenings. Many states have issued requirements that employers - depending on sector - screen employees prior to the beginning of each shift.

For example, in Massachusetts employers in the following sectors are required to screen workers at each shift for symptoms and potential contact: office spaces, personal care services, laboratories, gyms and fitness centers, lodging establishments, manufacturing, restaurants, retail stores, and "sectors not otherwise addressed." In Connecticut, personal care service, retail, restaurant, and office-based employers must ask employees resuming on-premises work to confirm they have not experienced COVID-19 CDC-defined symptoms.

The question then becomes: how do employers manage these and other employee screening requirements in an accessible, convenient, and secure way?

At CheckWriters, employees can login to our Employee Mobile App to complete the daily "Health Declaration" - a simple electronic declaration which allows the employee to self-certify their fitness for work relative to potential COVID-19 symptoms or exposure (you can view a quick video of this feature here).

While technology offers powerful tools to manage this process and keep employee information secure, there are a number of compliance concerns that all employers should be aware of before exploring health screening options. 

1. Can/should I screen my employees for COVID-19 prior to permitting them to report to work?

Yes. First, screening employees is now required in a number of states, depending on employer sector. This routinely updated list by law firm Littler Mendelson is particularly useful for employers. Further, based on guidance from the CDC regarding the severity and community spread of the disease, COVID-19 likely meets the definition of a “direct threat” as defined by the ADA, which means that screenings for possible COVID symptoms or exposure are permissible regardless of state mandates.

2. What can I ask/do relative to an employee COVID-19 health screening?

  • An employer may take the temperature of an employee who will be physically entering the workplace.
  • An employer may inquire as to an employee’s current manifestation of symptoms, whether they have been diagnosed with COVID-19, or whether they have been tested for COVID-19.
  • The scope of such examination should be narrow and should be designed to elicit only “YES” or “NO” responses.

3. What am I NOT ALLOWED to ask an employee as part of an employee COVID-19 health screening?

  • Generally, an employer may not inquire as to an employee’s existing medical condition or disability which may make him/her more susceptible to contracting the virus. 
  • An employer may not inquire as to the health circumstances or situations of an employee’s family members, or whether an employee lives with any family members exhibiting symptoms of COVID-19 (however, an employer may ask the broad question of whether the employee has been in contact with any individual(s) who have been diagnosed with COVID-19 or is showing symptoms of the virus).

4. What happens if an employee refuses to submit to having their temperature taken, or refuses to complete the employee COVID-19 health screen? 

  • An employer is permitted to refuse entry to any employee who is nonconforming with the employer’s ADA/state-compliant screening measures.
  • *Best practice would suggest that the employer should respectfully inquire as to the reason for such refusal. If the issue addresses the employee’s concern for the use or potential dissemination of their medical information, then the employer should reassure the employee that s/he will treat such information confidentially and with the utmost discretion and security as required of other medical information protected from disclosure by the ADA.

5. Can I require only one or select employees to submit to COVID-19 health screens, or ask only one employee questions to ascertain if they have COVID-19?

  • Yes. If the employer has a “reasonable belief based on objective evidence that this person may have COVID-19”. Example: An employee with a persistent hacking cough has been reporting to work. An employer may ask about the cough, whether the employee has been to a doctor, and whether the employee knows if s/he has or might have COVID-19.
  • However, best practice would suggest screening all employees, or to screen all employees belonging to a specific sector, assignment, area, etc., in order to avoid the risk of inadvertent discrimination.

6. What if an employee reports a positive test result for COVID-19, or reports having symptoms of COVID-19 on their employee health screen - may I disclose the identity of this employee?

Generally, No. All medical information obtained incident to an employee COVID-19 health screen is entitled to the confidentiality protections of the ADA and must be protected from inadvertent disclosure.

7. If I cannot disclose the name of the affected employee, what steps can I take to reduce transmission, and to provide sufficient information to other employees so that they may decide whether to be tested themselves? 

  • The CDC advises against broad disclosures of medical information and suggests informing employees of their possible exposure while maintaining confidentiality as required by the ADA. In other words, an employer may disclose that an employee has tested positive for COVID-19, but may not disclose the identity of such employee, or any other identifying characteristics which could reasonably lead to the identity of the employee.
  • In some jurisdictions, an employer is required to report a positive case of COVID-19 to the local board of health where the workplace is located, and to assist the board of health with contacting others who might have been exposed.

8. What must I do with the data/information received via employee COVID-19 health screenings?

  • The information and data collected via COVID-19 employee health screenings - including any potential follow-up communication - constitute confidential medical information under the ADA. If an employer retains this information, an employer must keep this confidential medical information separate from an employee’s personnel file, with such files being secured via encryption if electronically stored, or physically secure (i.e. locked file cabinet) if paper files.

9. When am I NOT permitted to retain the information gathered incident to an employee COVID-19 health screening? 

  • Pursuant to state or local directive or regulation. For example, in New York,“Responsible Parties are prohibited from keeping records of employee health data (e.g. the specific temperature data of an individual), but are permitted to maintain records that confirm individuals were screened and the result of such screening (e.g. pass/fail, cleared/not cleared).”
  • In the event that a prohibition exists as to retention of employee health data, but an employer is nonetheless required to demonstrate screening compliance with a state or local health order or directive, best practice would suggest that an employer follow-up in writing with any employee who has failed screening for the purposes of:
      1. Ensuring or encouraging an employee to reach out to their medical provider for further instruction;
      2. Discuss the possibility and availability of reasonable accommodation such as teleworking; and
      3. To obtain proper documentation for paid leave entitlements under federal or state legislation if an employee is unable to telework.
  • These follow-up communications are subject to the same ADA confidentiality provisions applicable to other employee medical information, and must be segregated from the employee’s personnel file.

10. How long, if at all, should I retain the data collected in connection with employee COVID-19 screenings?

  • Given the sensitivity of such information, and the heightened confidentiality and security obligations placed on employers who store such information as required by the ADA, recommendations from practitioners who have weighed in on the topic suggest that an employer should retain this information for only so long as necessary. Necessity can be driven by either the need to have verifying documentation that an employer is compliant with screening protocols mandated by state or local officials, or by the necessity to fend off future possible claims.

 

Disclaimer: This blog post is for informational purposes only and should not be construed as legal advice. It is always advisable to consult counsel relative to your specific situation and jurisdiction.

SOURCES:
Equal Employment Opportunity Commission (EEOC)
Centers for Disease Control and Prevention (CDC)
MA Department of Public Health
NY Department of Public Health

Go back

Subscribe to Our Blog