As employers ready their facilities to house employees once again, here are some issues and steps that need to be addressed and initiated to ensure a safe workplace. Please note that federal and state government responses to the COVID-19 pandemic, remain fluid. The recommendations that follow are based on what we know now. As we gain a better understanding of COVID-19, we will update this guidance accordingly.
Can Employees be Screened for Symptoms of COVID-19?
Yes. Common screening mechanisms can include written questionnaires and temperature checks. Employees can also be visually inspected or be required to self-report COVID-19 symptoms. Screening techniques need to be clearly explained in writing to employees: the specific screening processes utilized; general benchmarks for passing the screenings (i.e. must have temperature below 100.4ºF); expectations about employees’ compliance with procedure and any consequences for a refusal to participate; how employee privacy will be protected; and consequences of an unsuccessful screen (i.e. being sent home).
For a graphic of OSHA guidelines, take a look at Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus, now available in thirteen languages.
Questionnaire Best Practices
Questionnaires can be utilized to seek information such as whether an employee is experiencing symptoms of COVID-19 and whether they have come into close contact with anyone who tested positive for COVID-19 or has COVID-19 symptoms (including a member of their household), and/or whether they have come into close contact with anyone who has traveled to a known COVID-19 hotspot. Questionnaires should be brief and designed to elicit only “yes” or “no” responses. If an employee responds “yes” to any of the questions, designated personnel will follow-up with the employee, including asking any necessary follow-up questions, to make a determination of whether the employee would pose a direct threat to health or safety in the workplace.
Employers should ensure that screening does not go further than necessary by keeping it narrowly focused on assessing the COVID-19 threat. Thus, symptom-based questions will focus on whether or not an employee is experiencing symptoms identified by the most-recent CDC guidance, which currently include: 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 new loss of taste or smell. Questions around 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 will become more relevant.
Questionnaires should be completed by an employee at home or on-site in electronic or paper format or via a verbal exchange with designated personnel. Because the point of screening is to identify possible health and safety threats, responses should be collected at the start of each shift, but steps should be taken to identify potentially ill employees during a shift, whether through periodic spot checks or by instructing employees to self-report. And, if feasible, examiners will also conduct a visual inspection of the employee for signs of illness, including flushed cheeks or fatigue, and confirm the employee is not experiencing coughing or shortness of breath. If responses are collected manually or orally, appropriate safety measures will be taken to protect the health of the person designated to obtain the responses, including appropriate social distancing measures, physical barriers or controls, and/or personal protective equipment (PPE).
Temperature Check Best Practices
The Equal Employment Opportunity Commission (EEOC) and other governmental bodies have generally sanctioned temperature screening of employees, which would check for basal temperatures over 100.4ºF (per the CDC’s guidance). Employers should conduct such a check at the beginning of the workday (which will also reduce the possibility of a potentially sick employee coming into contact with others prior to their temperature check), at random and/or set times during the workday, and/or after observation of an employee exhibiting COVID-19 symptoms.
Temperature checks should be performed in a manner that maintains the privacy of the results and also takes into account social distancing measures for those waiting to be tested. This may result in modifying shift start times and/or setting up covered temperature check stations outside to allow waiting employees to comply with social distancing requirements. Alternatively, companies should require employees to 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. Further, employers should direct employees to immediately contact designated personnel if they begin to feel unwell during their shift. Additional recommendations include:
- Using touchless thermometers, which are highly preferred given the transmissibility of COVID-19, although other thermometers may also be used;
- Using the same type of equipment for all employees and properly calibrating the equipment to ensure consistency and accuracy;
- Disinfecting equipment following each employee screen (or at reasonable intervals if a touchless thermometer is used);
- Garbing the test-taker in the appropriate PPE;
- Replacing any of the test-taker’s gear that comes into contact with an employee after each screen;
- Incorporating other controls to protect the test-taker, including erecting physical barriers or partition controls where appropriate;
- As with questionnaires, supplementing any temperature check with a visual inspection of the employee for signs of illness because the absence of temperature does not always mean the absence of COVID-19; and
- Asking employees if and when they last ingested temperature reducing medication such as Tylenol, aspirins or certain NSAID.
Finally, a log of temperature check results or recorded verbal responses and visual inspection results may be maintained so long as the information is stored in a manner that maintains confidentiality (which is discussed further below). As an added precaution, employers may record “yes” or “no” whether the tested individual’s temperature exceeds 100.4ºF in lieu of recording the specific temperature.
Any individual who “fails” a screening procedure (whether at the point of entry or by exhibiting symptoms during the workday) should be discreetly directed to an isolated, private area for further inquiry by designated personnel. An “isolation plan,” will then be in effect, complete with a physical location for the isolated individual to wait that is designated and labelled as an isolation room to prevent misuse, transportation options, and PPE to issue to the infected individual. Further questioning will ascertain whether the individual is well enough to commute home in a safe manner or whether immediate medical or emergency assistance is necessary. Questioning of employees could extend further under certain circumstances, particularly where employers may need to issue a communication to other employees (discussed below). The designated personnel should wear appropriate PPE and the isolation area should be sanitized following the individual’s departure.
Companies should communicate their expectation that the individual would comply with the CDC’s recommendations, or their medical health provider’s instructions, to self-quarantine for the prescribed amount of time before being allowed back to the workplace. The employee may typically return to work once the employee is fever-free for at least 72 hours (without medication), other symptoms have improved, and at least 10 days have elapsed since the first symptoms appeared. Typically, employers should expect the individual to remain offsite for at least 14 days.
Employers may also require fitness-for-duty documentation upon the employee’s return and may require the individual to re-submit to screening procedures, although given the extreme pressure health care providers are under, we would be flexible as to the type of documentation required to return (e.g. permitting a medical professional to certify via email that the individual is no longer recommended to quarantine).
Depending on the circumstances, employers will want to fashion an appropriate communication to other staff members. Any communication should not disclose the name of the employee, 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 a COVID-19 case for a prolonged period of time, or having direct contact with infectious secretions of a COVID-19 case (e.g., being coughed on). Employers may consider implementing a 14-day quarantine period for anyone in close contact with the infected individual. If such measures are implemented, they will be applied equally to all workers in close contact.
If an employee refuses to comply with screening procedures, consequences, if any, would be communicated in advance to all employees and examiners, as well as examiners being trained as to what procedures to follow should such a situation arise. Many factors will be used to assess the basis of the employee’s refusal, including whether they are objecting on religious grounds or because they require accommodations. All screening requirements and consequences will be consistently enforced throughout the workplace.
As it relates to screening third parties such as vendors or temporary workers, for the time being, employers may consider reducing or even eliminating worksite access to non-essential third parties. The reality is that many companies or their facilities cannot operate in a vacuum, sealed off from the public. There are vendors, delivery persons, customers, and/or others who may require access. Some localities now recommend or require the screening of worksite visitors (in addition to employees). If third-party screening is implemented, it should be aimed at neutralizing the potential spread of COVID-19 and nothing more.
Advance notice about screenings should be provided to all third parties, with an option to forego worksite access in lieu of screening. Keep in mind, too, that third parties may have a wider variety of needs than our workforce and additional screening accommodations may be necessary to comply with the Americans with Disabilities Act (ADA).
Conversely, employers should recognize that third parties may require your employees to be screened while engaged in business for the company. You should make every effort to identify, in advance, whether and what third-party screening may be required and inform employees ahead of time. You should also independently evaluate and work with the third party to determine whether such screening efforts comply with applicable law, including the ADA, and otherwise determine their efficacy. To the extent an employee would refuse to participate with screening you determine to be reasonable under the circumstances, you should work with the third party and the employee to determine whether any alternatives are available and, absent any, whether you will discipline the employee for such refusal. A similar set of considerations would be in play with respect testing of your employees by third parties.
Can Employees be Required to be Tested for COVID-19?
Employees can be tested for an infection of COVID-19. Though it remains an open question as to whether we can require testing for a past infection, such as antibody testing.
Viral or Diagnostic Testing
Viral testing is performed to determine a current infection. In short, the EEOC has endorsed the view that employers are permitted to require viral testing. The EEOC reasons that mandatory testing of employees must be “job related and consistent with business necessity,” and in applying that standard to the current COVID-19 circumstances, 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. But this guidance does not mean that we have free reign to test. The EEOC also cautions that employers must ensure that any such test is accurate and reliable, and it encourages employers to review guidance from the FDA, CDC and other public health authorities to make that determination, while also “consider[ing] the incidence of false-positives or false-negatives associated with a particular test” and further that a negative test now does not necessarily mean an employee cannot test positive later.
Regardless of what the EEOC permits or does not permit, at present, it may be unrealistic for employers to require workforce testing given its limited availability and the difficulties raised in conducting tests on-site. A more realistic view has employers analyzing on a case-by-case basis whether viral testing may be beneficial for a certain limited set of critical, on-site employees. Again, this may change as the testing infrastructure is built.
Antibody or Serological Testing
Serological testing is an “after the fact” blood test that reads the body’s reaction to the virus’s presence by measuring the amount of antibodies produced by the immune system. In other words, this test looks at whether someone had an infection previously. The EEOC has not yet commented on whether such tests – which account for past infection – satisfy the direct threat standard, and therefore it remains unclear whether employers can mandate their use without violating discrimination laws. Given the existing scientific, ethical and other legal considerations at play, we will keep a watchful eye on developments in this regard.
While currently there is no vaccine for COVID-19 and one may not be available for some time, once a vaccine becomes available, mandatory vaccination policies could be implemented. Past guidance by the EEOC indicates that such policies may be acceptable, provided we make appropriate disability and religious-based reasonable accommodations to a requesting employee; and the accommodation would not cause undue hardship. We will need to determine whether any applicable law prohibits (or requires) mandatory vaccination, which may include new laws in the near future.
Application of HIPAA
Although most people think “health information” is automatically regulated (and protected) by the privacy and security provisions of the Health Insurance Portability and Accountability Act (“HIPAA”), most employers are generally not subject to the HIPAA privacy regulations. Even in the limited instance where such information might be subject to HIPAA, the U.S. Department of Health and Human Services has stated that HIPAA allows disclosure, “without a patient’s authorization, [of] protected health information about the patient as necessary to treat the patient or to treat a different patient.” (45 CFR §§164.502(a)(1)(ii), 164.506(c)). HIPAA, if applicable, also allows disclosure in emergencies such as the COVID-19 emergency to public health officials. (45 CFR §§164.501 and 164.512(b)(1)(i)).
Collection of Information
The ADA requires that employers keep all medical information confidential (42 U.S.C. § 12112(d)(3)(B) and 12112(d)(4)), including information related to symptoms of COVID-19 or a diagnosis of COVID-19. This includes all test results, temperature screening logs, questionnaires, and other medical information being solicited from employees. We will ensure employees and third parties, such as vendors or other visitors to the workplace, understand that such information must and will be kept confidential and that only people with a “need-to-know” will have access to the medical information. As always, in addition to limiting the people with access, we will be collecting the minimum amount of information necessary.
Finally, employers should store all medical information separately from personnel files under all circumstances.
Storage and Retention of Information
The HIPAA privacy and security rules will not apply to COVID-19 related information collected from employees or visitors. However, this information will be carefully safeguarded. Many states have added health/medical information to the definition of “personal information” in their state data breach notification laws and unauthorized access to or disclosure of such information could trigger notification to individuals and/or state attorneys general under those laws. Disclosure of such information even within the workplace to employees not otherwise authorized to access health information could trigger reporting obligations under some state data breach notification laws. There are no exceptions or “time outs” during this COVID-19 emergency for security breaches under state law. Currently, Illinois includes triggers for notice on lost, hacked, stolen or other unauthorized disclosure of health/medical information or health ID numbers.
Retention of medical information collected during the return to the workplace will be in accordance with local health guidelines, or such period of time deemed necessary to address potential claims. The utility of certain information may be limited after a period of time – such as daily visitor temperature logs – and consideration will be given to keeping only what we may need for as long as we need to keep it and securely destroying non-critical information as soon as possible. Any information retained should be secured in locked cabinets if paper files, or encrypted at all times if electronic/digital files.
COVID-19 screening and testing is an ever-changing landscape as new information comes to light about the virus, its transmissibility and its treatment. Keep in mind that regulations regarding screening and testing continue to change at the local, state, and federal levels. Further, remember screening and testing do not replace critical infection control practices such as social distancing, frequent hand-washing, and wearing face coverings, among others.
If you have questions about ensuring your organization provides a safe workplace, please contact Johnson & Bell Shareholders, Christopher J. Carlos, Joseph F. Spitzzeri, Genevieve M. LeFevour, Brian C. Langs or the Johnson & Bell attorney with whom you regularly work.