Coronavirus (COVID-19), HR Management & Compliance

COVID-19 Raises Critical Questions About Employee Testing

The coronavirus (COVID-19) pandemic presents unprecedented challenges for any employer seeking to provide a healthy working environment. To help mitigate some of the uncertainty, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidance for employers considering screening and testing protocols for employees and job applicants.

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The efforts, along with a growing patchwork of state and local laws, are intended to slow the spread of infections.

Questions and Answers from the EEOC

The EEOC guidance explains what precautionary measures are now permissible under the Americans with Disabilities Act (ADA). Here are some helpful questions and answers.

To protect the rest of the workforce, how much information may an employer request from an employee who calls in sick during the COVID-19 pandemic?

EEOC: During a pandemic, ADA-covered employers may ask sick employees if they are experiencing symptoms of the virus. For COVID-19, they include fever, chills, cough, shortness of breath, or a sore throat. You must maintain all information about employee illness as a confidential medical record in compliance with the ADA.

When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?

EEOC: Generally, measuring an employee’s body temperature is considered a medical exam. Because the Centers for Disease Control and Prevention (CDC) and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, you may measure employees’ temperature. Be aware, however, some people with COVID-19 don’t have a fever.

Does the ADA allow employers to require employees to stay home if they have symptoms of COVID-19?

EEOC: Yes. The CDC says employees who become ill with COVID-19 symptoms should leave the workplace. The ADA doesn’t interfere with employers following the agency’s advice.

When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty?

EEOC: Yes. The inquiries are permitted either because (1) they wouldn’t be disability-related, or (2) if the pandemic were truly severe, they would be justified under the ADA’s standards for disability-related inquiries of employees.

As a practical matter, however, doctors and other healthcare professionals may be too busy during and immediately after an outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual doesn’t have the pandemic virus.

Other Questions We’ve Received

While COVID-19 issues have been evolving hour-by-hour, here are other questions we’ve received and our best answers in the moment.

If an employer implements a testing protocol, who should administer the tests? Ideally, any tests would be administered by medical professionals. HR or environmental health and safety professionals, though, are potential alternatives.

May an employer require employees to self-report their own temperatures and those of their immediate family members as a condition of returning to work? You may reasonably rely on employees’ self-reporting but may still opt to interview and observe them for any symptoms associated with the virus.

Is there a threshold temperature at which an employee should be sent home? According to the CDC, individuals with body temperatures of 100.4 degrees or higher should isolate themselves from others.

How long should you wait before returning an employee to work who has tested above the threshold temperature? Some employers have held off on returning affected employees to work until they have passed a 14-day self-quarantine period without exhibiting symptoms. Others may require a doctor’s release or a documented negative COVID-19 test.

Should employees paid on an hourly basis clock in before submitting to testing? A best practice would be to perform any tests while an employee is on the clock.

How may you avoid creating logjams of employees congregating together as they line up for testing? For large plant-like environments, you may consider a “drive-through” approach similar to the public testing centers being set up at retail locations. It may not be feasible in an office-building setting, which could necessitate a staged entry approach or additional direction to maintain adequate line spacing.

Should you test all or only some employee groups? It may be defensible to test only employees who pose a higher risk, but it’s important to be consistent and document the basis for your decision.

How will the process be kept confidential? Testing protocols that permit employees to discern the results received by their coworkers likely should be avoided.

If an employee is sent home, must you continue to pay her during the absence? On March 18, 2020, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA), which contains paid leave provisions applicable to certain employers. Even if the FFCRA doesn’t apply, you may be subject to a state statute or municipal ordinance that provides for paid sick leave.

What records from the testing or screening protocol should an employer retain? Employee medical records should be treated as part of the company’s confidential medical files and retained per any applicable regulatory requirements.

Retaining all testing records would likely necessitate more administrative paperwork, but these records could be needed if an employee later alleges discriminatory exclusion from work because of some protected status (e.g., disability, age, race, sex, etc.).

This summary was prepared by Faegre Drinker attorneys Helen E. Tuttle, Gregory P. Abrams, and Alex Harrell.