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Return to the Workplace Part 2: Testing

June 4, 2020

Update

Please see the Confidentiality section of this article for additional information regarding temperature screening in New York.


May 15, 2020

As employers begin to plan for a return to the workplace, they must determine what procedures to put into place to try to quickly detect and isolate any COVID-19-infected employees. These procedures, which could include temperature taking, questionnaires asking employees about COVID-19 symptoms and diagnostic or antibody/serology testing, raise several legal concerns, many of which have been addressed in recently issued guidance from the Equal Employment Opportunity Commission (“EEOC”).

In addition to the EEOC guidance, employers should also review any available guidance from state and local agencies. For example, the New York City Commission on Human Rights (“NYCCHR”) has adopted the EEOC guidance regarding taking employees’ temperatures, but the New York State Division of Human Rights (“NYSDHR”) has not yet specifically addressed the issue.

Temperature Taking

The EEOC recently updated its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, originally issued in 2009, to provide guidance interpreting employer obligations under the Americans with Disabilities Act (“ADA”) in light of the COVID-19 pandemic.  The EEOC has also published a guide titled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. All EEOC materials related to COVID-19 are collected at www.eeoc.gov/coronavirus.

The EEOC guidance explains that an employer ordinarily may not take an employee’s temperature because it would be considered impermissible under the ADA, which prohibits employers from making disability-related inquiries or conducting medical examinations. There is an exception under the ADA, however, if such an inquiry or examination is “job-related and consistent with business necessity.” To satisfy this exception, an employer must have a reasonable belief that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition. The EEOC guidance establishes that an individual with COVID-19 satisfies the “direct threat” standard, and therefore an employer may measure the body temperatures of its employees before they enter the workplace during the current pandemic.

The EEOC guidance also provides that employers can send employees home if they have a fever because fever is a symptom of COVID-19. According to the CDC, a person is considered to have a fever when the individual has a measured temperature of 100.4° F (38° C) or greater.

The NYCCHR’s guidance, available here, states that an employer’s compliance with the EEOC guidance will satisfy its obligations “with respect to disability protections under the New York City Human Rights Law as they relate to COVID-19.” Importantly, the NYCCHR guidance clarifies that its adoption of the EEOC guidance “does not constitute a wholesale adoption of federal disability law, nor does it limit the New York City Human Rights Law beyond the scope of what is covered within the EEOC guidance.”

The guidance issued by the NYSDHR, available here, does not address whether taking an employee’s temperature would violate the New York State Human Rights Law (NYSHRL). The NYSDHR guidance merely states that an employer may not fire or send an employee home, tell an employee not to come to work or discriminate against an employee in any other way because of a belief that the employee was exposed to COVID-19 where that belief is based solely on race, national origin, or disability. Taking employees’ temperatures is included in a Safety Plan template issued under the New York Forward reopening plan (previously reported here), so it is reasonable to conclude that doing so is permissible under New York law under the current circumstances.

How to Conduct Temperature Tests

Employers can either take employees’ temperatures when they arrive at the workplace or require that employees self-test and communicate the results.

By conducting their own tests, employers can ensure that they are using reliable equipment and testing 100% of the workforce prior to entering the workplace. However, this requires assigning one or more individuals to take each employee’s temperature or purchasing expensive thermal devices and staffing them appropriately. Individuals involved in testing would need to be provided with appropriate protective gear and training, as well as instructions about how to record the results. Employees would need to be paid for time spent having their temperatures taken. Taking employees’ temperatures as they arrive at the workplace may also delay the start of work and cause long lines at entry ways, where employers would need to ensure that appropriate social distancing is maintained.

While requiring employees take their own temperatures at home and report the results prior to entering the workplace may eliminate some of the above problems, this method has drawbacks. Relying on employees to take their own temperature may not capture information for 100% of the workforce, and some of the information may not be reliable. For example, employees may not report accurate information if employees forget or report that they do not have a fever in order to work. Also, employees may transmit daily temperatures in a non-confidential manner (for example, by texting their manager), which in turn raises the potential for confidentiality concerns (discussed below). In short, while relying on employees to self-test will eliminate some problems, it will also likely result in a less accurate and uniform process.

Documents from Health Care Providers

The EEOC guidance states that an employer may require an employee to provide a doctor’s note certifying his/her fitness to return to work. However, recognizing that “doctors and other health care professionals may be too busy” to provide such certifications during and soon after the COVID-19 pandemic, the EEOC advises that “new approaches may be necessary,” such as relying on “local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have” COVID-19.

Questionnaires

Employers may also ask employees and visitors to fill out questionnaires to obtain information about symptoms other than fever. According to the EEOC guidance, employers are permitted to inquire whether employees are experiencing influenza-like symptoms, such as fever, chills, a cough or sore throat.

Guidance issued by New York State advises that the questionnaire should ask whether the worker or visitor has: (a) knowingly been in close or proximate contact in the past 14 days with anyone who has tested positive for COVID-19 or who has or had symptoms of COVID-19, (b) tested positive for COVID-19 in the past 14 days, or (c) has experienced any symptoms of COVID-19 in the past 14 days. According to the CDC, the term “symptomatic” includes employees who have the following symptoms or combinations of symptoms: fever, cough, shortness of breath, or at least two of the following symptoms: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell.

If an employee reports feeling ill at work, or calls in sick, employers may ask questions about their symptoms to determine if they have or may have COVID-19. If an employee tests positive for COVID-19, employers must inform the New York State Department of Health and the local health department.

COVID-19 Tests

Employers reopening the workplace may also be interested in requiring employees to undergo COVID-19 specific tests to determine whether an employee is currently infected or has previously been infected.

Diagnostic testing can determine whether an individual currently has COVID-19. The EEOC has indicated that employers may require employees to undergo  a COVID-19 diagnostic test to determine whether an employee has COVID-19 before permitting an employee to enter the workplace. However, employers should ensure that the diagnostic test is accurate and reliable. The EEOC cautions employers to consider the incidence of false-positives or false-negatives associated with some tests. Tests should be administered by medical professionals.

Antibody tests (also referred to as serology tests), which are typically administered by gathering blood, are designed to detect whether an individual previously had COVID-19. As of now, employers may not require that an employee undergo antibody testing prior to entering the workplace. The EEOC has explained that requiring these tests is not permissible because, according to guidance issued by the Food and Drug Administration(“FDA”), antibody tests are currently incapable of definitively diagnosing or excluding COVID-19 infection. Therefore, until antibody tests are considered reliable and accurate by the FDA, employers should not require employees to take these tests.

Customers/Clients/Visitors

Employers may also seek to take the temperatures of customers, clients or other visitors, and/or ask then to complete questionnaires about symptoms, prior to permitting entry to the workplace. Employers may exclude those with a fever or symptoms associated with COVID-19.

Taking these steps may be prudent at certain workplaces for at least two reasons. First, it may prevent these individuals from transmitting the disease to workers, which in turn will reduce additional operational disruptions. Second, while some customers/clients/visitors may find the process invasive or unnecessary, many more may be reassured that an employer is taking all steps necessary to make the environment safe and continue to return in the future. For example, customers may prefer to shop at a store that has temperature screenings rather than one that does not.

Employers must ensure that they do not selectively require testing or questionnaires for groups perceived to be at higher risk of contracting COVID-19. Enforcing a policy in a discriminatory manner would raise significant legal and reputational concerns.

Confidentiality

Employers must be mindful that records of employees’ temperatures and questionnaires regarding symptoms are considered medical information that must be kept confidential in accordance with the ADA. The EEOC guidance states that employers may keep a log of employees’ temperatures as long as the data is kept confidential. By contrast, the guidelines on the New York Forward website state “Responsible Parties are prohibited from keeping records of employee health data (e.g. temperature data).” We received further guidance from New York explaining that while employers “are prohibited from keeping records of the employee's temperature,” employers “are allowed to keep a record that the employee was screened and if the employee was allowed to enter the workplace or was sent home.”

An employer also may not disclose to other employees the name of an employee who has COVID-19 or symptoms associated with COVID-19, but the employer may report that information to state and local health departments.

Employers who record any medical information regarding employees, including through temperature checks or questionnaires, must ensure that the information is stored in a confidential and secure manner. For example, an employer or manager should not save employee medical information on a network system that is accessible to all company employees. All medical information must be kept in a separate file, rather than in an employee’s general personnel file. Employers should review how they acquire and maintain employee medical information and implement protocols designed to consistently preserve confidentiality.

Next Steps

Employers should review the EEOC and CDC guidelines, as well as guidelines issued by state and local authorities, when determining what policies to put in place as they start planning to welcome employees back to work. It is important to keep in mind that temperature-taking or symptom questionnaires do not completely protect against COVID-19 because many infected individuals are asymptomatic. Further, there may be delays in receiving the results of diagnostic testing, and it may be impractical to regularly require such testing of employees. Accordingly, employers should also implement additional precautions and policies for reducing the spread of COVID-19 in the workplace, such as those covered in our previous article, available here.

Please do not hesitate to contact any of our attorneys if you have any questions or would like additional information.