July 9, 2020

By: Aaron C. Schlesinger, Partner, & Shannon D. Azzaro, Partner, Peckar & Abramson, P.C.

Currently Available Workplace Protocols for Employers

Employers seeking to minimize the risk of COVID-19 transmission in the workplace should consider from among the three currently available protocols: Written Questionnaires; Temperature Checks; and Viral or Diagnostic Testing.

When implementing a screening or testing protocol, employers should explain the following in writing to employees: (1) the specific screening process or test utilized by the employer; (2) employee compliance expectations and any consequences for a refusal to participate; (3) how employee privacy will be protected; (4) if screening, the general benchmarks that indicate the employee has “passed” (e.g., temperature below 100.4ºF, per CDC guidelines); and (5) the outcome of an unsuccessful screen or test (e.g., being sent home from the workplace).  Employers must also ensure that those administering the screening and/or testing are properly trained, and that appropriate written acknowledgements are obtained from employees consenting to the applicable protocol. 

1.         Questionnaires

A questionnaire should seek information on:

1. Whether the employee is experiencing the symptoms of COVID-19;

 2.  Whether the employee has come into close contact with anyone who has tested positive for COVID-19 or has COVID-19 symptoms (including a member of their household); and/or   

 3. Whether the employee has come into close contact with anyone who has traveled to a known COVID-19 hotspot. 

The questionnaires should be short and designed to elicit only “yes” or “no” responses. 

Further, the questionnaire should contain symptom-based questions that focus on whether or not the employee is experiencing symptoms identified by the most recent CDC guidelines, including cough, shortness of breath or difficulty breathing, or at least two of the following symptoms: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, and loss of taste or smell.  Questions related to an employee’s exposure to COVID-19 should focus on whether the employee came into close contact with any individual infected with COVID-19 or with COVID-19 symptoms.  As “Stay at Home” orders are lifted, questions aimed at understanding an employee’s recent travel history and attendance at public gatherings should also be inc

2.         Temperature Checks 

The EEOC and other government agencies have approved temperature screening of employees that check for body temperatures over 100.4ºF (per CDC guidelines).  Temperature checks should be administered at the beginning of an employee’s work shift.  Employers should also consider administering checks on a random basis, at set times during the workday, and/or upon observing an employee exhibiting COVID-19 symptoms.

Alternatively, employers may require that employees check their own temperatures at home and either submit the temperature reading to designated personnel or otherwise certify that their temperature was below 100.4 ºF.  Employers should consider this option thoughtfully, as it removes control over the process and the ability to verify accuracy of results.

 3.         Viral or Diagnostic Testing

First and foremost, employers should ensure that tests are accurate and reliable. Employers are well-advised to review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from the CDC or other public health authorities, and to regularly check for updates.  Effective due diligence should also include evaluation of the frequency of incorrect or inconclusive results (false-positives and false-negatives) associated with a particular test.  It important to note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Viral testing only determines the presence of a current infection.  The EEOC has affirmatively stated that an employer may mandate viral testing; however, the mandatory testing of employees must be “job related and consistent with business necessity”.  Moreover, employers are permitted to take steps to determine if any employee entering their workplace has COVID-19 because COVID-19 carriers pose a direct threat to the health of others. 

Antibody or Serological Testing Not Legally Permissible 

Antibody or serological testing is an “after the fact” blood test that reads the body’s reaction to the presence of the virus by measuring the amount of antibodies produced by the immune system.  Simply put, the test determines whether an employee had a prior infection.  The EEOC has recently issued guidance stating that under the ADA, employers may not require antibody testing before allowing employees to re-enter the workplace.  Likewise, the CDC has stated that antibody test results should not be used to make decisions regarding an employee’s return to the workplace.  Therefore, at this time, antibody testing is not permitted as a means for screening.

Employer Response to a Positive COVID-19 Test or Symptomatic Employee

Any individual who tests positive, exhibits symptoms, or has been exposed to the COVID-19 virus should be discreetly directed to an isolated private area for further inquiry by designated personnel.  Employers should have an isolation plan in place in advance, and should ask the employee (if possible) and their supervisor/manager for a list of anyone with whom the employee has had close contact in order to facilitate contact tracing.  The employer should determine whether the employee is well enough to travel home in a safe manner (e.g. via a private vehicle, if practicable) or whether immediate medical or emergency assistance is necessary.  

It should further be communicated to the employee that he or she should comply with the CDC’s recommendations and/or their health care provider’s instructions to self-quarantine for the prescribed amount of time before being permitted to return to work.  The employee may typically return to work once (i) the employee is fever-free for at least 72 hours (without medication), (ii) other symptoms have improved, and (iii) at least 10 days have elapsed since the first symptoms appeared.  However, if an employee has been exposed, that individual should quarantine for 14 days.  

Employers may also require medical documentation supporting the employee’s ability to return to work, as well as require the employee to re-submit to screening procedures.  Employers should be flexible in their approach due to the pressures and time constraints medical personnel are facing at this time.  For example, an email from the health care provider certifying that the employee can return to work should suffice.

Communication with other Employees

An employer should provide an appropriate communication to other staff members.  The communication should not disclose the name of the employee, but should generally identify when/where the individual was present, and should be directed to those identified as being in close contact with the individual.  The CDC defines “close contact” as within approximately 6 feet of an individual diagnosed with COVID-19 for a prolonged period of time, or having direct contact with infectious secretions of someone diagnosed with COVID-19 (e.g., being coughed on).  The employer should also consider implementing a 14-day quarantine period for anyone in close contact with the infected individual.  If the employer implements such measures, it must be applied equally to all workers in close contact.

Employee Refusals to Participate in Screening and/or Testing

Employers must consider how to respond in the event an employee refuses to participate in the screening and/or testing process, and communicate the consequences to employees.  Moreover, before disciplining an employee for a refusal, assess the basis of the employee’s refusal, including whether they are objecting on religious grounds or because they require an accommodation.

Importantly, the screening and/or testing requirements and consequences for refusal must be equally applied across the workforce to avoid any inferences of discrimination.

Right to Privacy

In general, U.S. privacy law provides employers with little certainty to answer questions such as what liability employers could face for sharing (or not sharing) employee exposure to COVID-19 or COVID-19 test results.  There is no single statutory source governing the treatment of an employee’s personal information, and in particular, employees’ health information.  The general fundamental privacy law principles of transparency, notice, choice, and fairness should be used as a guide.  Where possible, employees should be made aware of an employer’s need to make certain disclosures to the workforce and the employee should be provided with a reasonable choice whether to permit particular uses or disclosures. 

Final Thoughts

Employers should consider the practicalities of each screening and/or testing method, including frequency of screening and availability of testing, when determining which method or combination of methods to use.  Where employee infection is detected, employers should determine whether other employees had been in close contact with the infected employee and consider precautionary measures such as quarantine and/or other interventions to protect the health and safety of other workers on site.  Employers are advised to remain updated on local guidelines and executive orders with respect to social distancing, safety measures, and other interventions, such as face coverings. Employers should also seek legal guidance when necessary.

Please feel free to contact us with any questions.

The  views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.