Employers are allowed to take steps to determine whether employees entering the workplace have COVID-19. Under the federal Americans with Disabilities Act and many analogous state laws, an employer can require medical testing as long as it is “job related and consistent with business necessity.”
The Equal Employment Opportunity Commission has indicated that an individual with coronavirus will pose a direct threat to co-workers (and, depending on the job, possibly others), and says that the employer can screen for COVID-19.
With this in mind, employers should ensure that their tests would reliably detect COVID-19 or symptoms associated with COVID-19. The most common test involves temperature checks, which the EEOC has authorized.
Employers may also ask employees whether they have been exposed, or have had contact with others who have been exposed, or have experienced symptoms associated with the virus. This last part can be a challenge, as the list of common symptoms is constantly evolving, and different people manifest the illness differently.
Employers should stay abreast of the latest medical information from reliable sources, such as the Centers for Disease Control and Prevention. The CDC’s guidance identifies the following common symptoms that may appear: fever, cough, shortness of breath/difficulty breathing, muscle pain, headache, sore throat, or new loss of taste or smell.
The EEOC has also said that employers can test specifically for COVID-19 or for COVID-19 antibodies. However, the tests should be reliable. Again, employers should keep up with the latest medical information from reliable sources.
Finally, the ADA requires that all medical information about an applicant, offeree or employee — including temperature logs or results of COVID-19 tests — be kept confidential and separate from the employee’s regular personnel file.
Pay for time getting tested?If the employer is requiring the testing, the time spent getting tested should be compensated.
What can be done in-house?
As a general matter, employers should have a medical professional oversee and/or conduct any medical tests, such as the clinical diagnostic tests currently approved for use. These tests require a laboratory to analyze and issue findings.
On the other hand, some testing — including temperature testing — can be done in-house and by the employer. Employers can also ask employees to self-report symptoms and possible exposure. Even for testing that can be done in-house and by someone who is not a medical professional, employers should avoid having the testing conducted by the employee’s manager.
Is a consent form needed? Before medically screening employees, it is always advisable to obtain their prior written consent.
If the screening is for temperature and not COVID-19, the consent should also include an acknowledgment that the test is not a diagnostic test and should direct employees to consult with their medical providers if they become concerned about any symptoms.
Such considerations need to be reviewed with employment counsel for compliance and risk reduction.
Objection due to religious beliefs? If an employee has a religious objection to having her temperature taken or being required to be tested for COVID-19, the employer should engage in the interactive process to determine whether it can accommodate the objection without creating an undue hardship or posing a direct threat to other employees in the workplace.
The EEOC has said that an employer is not required to provide accommodations that would create a threat to the health and safety of other workers or the public.
Common Sense Counsel
The COVID-19 pandemic has presented new and unique legal challenges for employers as shown by Constangy’s 25+ posts. Including the latest post on Returning to Duty FAQ form which the above was taken. See https://www.constangy.com/coronavirus