Employee Testing for COVID-19: What Works Now for Your Worksite?

Originally published by Paul Evans and Autumn Sharp.

With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.

1.  Can I check my employees’ temperatures before they enter the  workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?

Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.

A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.

In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.

2.  Does daily symptom/contact screening still make sense? What can employers ask?

Yes, daily symptom screening or self-certification can help to identify COVID-19 symptoms that may not be observed by other screening (such as a temperature check). This information can help employers make an assessment of whether employees should be sent home. The CDC promotes such procedures as part of the daily in-person or virtual health checks employers should consider, and many states have orders or protocols in place requiring employers to conduct symptom screening checks. Employers often utilize temperature checks and symptom/contact screening hand-in-hand.

Before screening an employee, check with your state to determine whether there are certain questions you are required to ask. Otherwise, consider asking whether:

• The employee has any of the symptoms of COVID-19 identified by the CDC (be certain to stay up-to-date on any new CDC symptoms and change your questionnaire accordingly);
• The employee has tested positive for COVID-19 and when;
• The person has been in “close contact” with someone suspected of having or who has tested positive for COVID-19 (the CDC defines “close contact” as within 6 feet of an infected person for at least 15 minutes starting from 48 hours before the person began feeling sick until the time the person was isolated);
• The person has recently returned from a cruise, river cruise, or abroad (the CDC currently recommends anyone traveling internationally self-isolate for 14 days upon return to the US. The CDC also currently advises passengers returning from a cruise ship or river cruise voyage to self-isolate for 14 days, monitor their health, and practice social distancing); or
• Whether the person returned from a “hotspot” location stateside (depending on your state/local laws, the person may be required to self-quarantine).

Recent OSHA guidance indicates that if an employer implements a medical screening program, the documents may trigger the agency’s medical records rule, requiring records to be held for at least 30 years and kept confidential. Keeping this in mind, employers should consider removing open-ended questions that may invite employees to provide additional medical information from the screening questionnaire. Instead of asking what symptoms an employee is experiencing, have the employee self-certify that they don’t meet any of the symptoms or close contact factors. Employers will have the certification and information they need to permit the employee into the workplace without collecting any information that could be deemed a “medical record.”  

3.  Can I require my employees to take COVID-19 diagnostic tests for active infections before entering the workplace?

Yes, at this time, you can require employees to take COVID-19 diagnostic tests for active infections if you are using a reliable test (i.e. has been approved by the FDA), and the reason you are testing is to try to protect the workplace from infection. See EEOC guidance. The legality of such testing may change if COVID-19 wanes, so it is important to stay up-to-date on the EEOC’s guidance on testing.

However, be certain not to conduct testing in a discriminatory fashion. For instance, you cannot require those who are at higher risk for serious illness from the virus to submit to testing, but not others. In addition, you should be willing to make exceptions for testing. An individual may have a religious objection to testing or a disability that prevents them from being safely tested.

Finally, employers requiring COVID-19 diagnostic tests should hire a third-party who is trained and licensed in medical examinations and required (by contract and regulatory laws) to meet privacy restrictions. A trained third party can minimize inaccurate test administration (which could lead to inaccurate results), and assuage both employer and employee privacy concerns.

4.  Can I require my employees to take COVID-19 antibody tests (to determine whether or not they have already built up antibodies to COVID-19 exposure) before allowing them to return the workplace?

No. See EEOC guidelines. An antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries of employees. An antibody test may provide information regarding whether an individual had prior exposure to the virus, but not whether an individual is currently infected with the virus. Therefore, antibody tests do not provide specific information whether the employee is currently a “direct threat” to health and safety in the workplace, and cannot be required.

5.  Can I offer tests for COVID-19 antibodies or active COVID-19 infections to my employees on a voluntary basis?

It depends. As mentioned above, a test for COVID-19 antibodies or for active COVID-19 infection is a medical examination. Testing employees for active COVID-19 infection before they enter the workplace is currently allowed because the EEOC has declared the COVID-19 pandemic to be a “direct threat,” and because testing employees for an active COVID-19 infection can help to keep COVID-19 out of the workplace.

It is far from certain that voluntary testing of employees for COVID-19 meets the ADA’s “direct threat” standard, because employees who choose not to be voluntarily tested will still be allowed into the worksite. It seems counterintuitive that the voluntary testing would be deemed “job-related and consistent with business necessity” to assess a direct threat when only the employees who want to be tested are taking a test before entering.

There is an exception under the ADA for voluntary medical examinations that would not require employers to meet the “job-related and consistent with business necessity” standard. Those medical examinations must be part of an “employee health program available to employees at that work site.” See 42 U.S.C. § 12112(d)(4)(B).

However, voluntary COVID-19 testing is not likely to meet the definition of “employee health programs” (also known as voluntary wellness programs) as defined by the regulations. See 29 CFR § 1630.14(d)(1). Under an employee health program, in addition to the collection of information, there must also be meaningful follow-up and advice provided to improve health or prevent disease. See 29 CFR § 1630.14(d)(1) (“A program consisting of a measurement, test, screening, or collection of health-related information without providing results, follow-up information, or advice designed to improve the health of participating employees is not reasonably designed to promote health or prevent disease, unless the collected information actually is used to design a program that addresses at least a subset of the conditions identified.”) Thus, voluntary testing is unlikely to fall under the employee health program exception to medical examinations, meaning employers still must meet the “job-related and consistent with business necessity” standard, even when offering tests on a voluntary basis.

However, if the employer is merely making the test available to employees who voluntarily take the test, and the employer does not receive the results, then the testing would not likely fall under medical testing covered by the ADA, because the employer is not “seeking information” about an individual’s physical or mental impairments or health. See https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees.

6.  What are the upsides and downsides of temperature testing and symptom/contact screening compared to COVID-19 diagnostic testing for active infection?

• Upside: Inexpensive. Compared to COVID-19 diagnostic tests, temperature checks and symptom/contact screening are inexpensive. Temperature checks can be done with a relatively inexpensive no-touch thermometer or a thermal scanner. Symptom/contact screening can be done via paper or online survey, and both temperature checks and symptom/contact screening can be completed and provided to the workplace before employees enter the building through online self-certification. COVID-19 diagnostic tests can start at approximately $100 per test, and although the Families First Coronavirus Relief Act (FFCRA) and CARES Act mandate that they be covered by insurance, employers are having to front the cost of the tests while awaiting reimbursement from insurance companies, to the extent they will receive it. For this reason, some employers are not testing every day but initially when employees return to work, or quarterly, monthly, or some other more affordable time increment.
• Upside: Minimally invasive. No-touch temperature checks and symptom/contact screening are less invasive than COVID-19 diagnostic tests, which require the insertion of a nasopharyngeal swab, a nasal swab, or the collection of saliva.
• Upside: Easier administration. Though you can choose to have a third party administer temperature checks or symptom/contact screening, you don’t have to. As long as you have an individual who can be trained to use the correct tools (no-touch thermometer or thermal scanner and symptom/contact questionnaire) and who is bound to keep all results confidential, someone already on the company payroll (such as an administrator or individual in your HR department) can conduct the tests. On the other hand, COVID-19 diagnostic tests should be given by health care professionals who are licensed and trained to correctly administer the test, which may require vetting and hiring a third-party (and expending additional funds).
• Upside: Quick results. You’ll be able to tell immediately if someone has a fever, or if someone discloses they have been in “close contact” with someone through a symptom/contact screening. You can proceed with determining whether the employee needs to leave the workplace and self-isolate based on this information. On the other hand, COVID-19 diagnostic tests can require days before results are available-especially now, where there are shortages of several components of the testing process leading to a backup in delivery of results. In that time, an employee can remain in the workplace and infect others.
• Downside: Even without a fever or disclosure of symptoms, the person may be contagious. If someone has COVID-19 but is pre-symptomatic or asymptomatic, they may not have a fever-and may not have any other symptoms to disclose. Even symptomatic employees may “hide” their symptoms by using over-the-counter fever reducers or by not being entirely honest in their symptom/contact screening responses. These employees could remain in the workplace exposing others to the virus.
• Downside: Fevers and symptom/contact disclosures are not a diagnosis. The CDC’s list of recognized COVID-19 symptoms has changed frequently as more is discovered about the effect of the virus, and some of those symptoms, alone or even together, may not initially indicate COVID-19. Is an employer going to exclude all employees who say they have a headache or fatigue from the workplace? Even though COVID-19 diagnostic tests for the active virus are more expensive, require more involved administration, and may require several days before results are provided, the COVID-19 diagnostic tests result in a diagnosis, making it one of the few things an employer can do to actually protect the workplace. In addition, employees may find it comforting knowing that everyone is being tested. Some employers have set up voluntary testing programs for employees, and those programs have generally been well-received. However, voluntary tests are likely only permissible under the ADA if the employer does not receive the results, as discussed above.

7.  What are some considerations I should keep top-of-mind when conducting COVID-19 tests or screening (whether temperature checks, symptom/contact screening, or COVID-19 diagnostic tests for active infections)?

• Keep personal and equipment contact to a minimum. For instance, if conducting temperature checks, use a no-touch thermometer or thermal scanner. If your workplace is using symptom/contact screening, consider allowing employees to do it online before they arrive at the workplace to reduce the number of people waiting in line to fill out forms and to reduce the chance of shared clipboards or writing utensils.
• Protect those doing the screening. Make sure personnel doing any in-person screening are at least six feet away from the workers being screened. If distance is not possible, provide the personnel with appropriate PPE (which may include gloves, a gown, a face shield, and at a minimum a face mask) depending on the repeated close contacts the screeners have with other workers. N95 respirators may be appropriate for those performing screening duties or those handling symptomatic employees, but if respirators are provided by the employer, the respirators must be provided in the context of a comprehensive respiratory protection program including medical exams, fit testing, and training in accordance with OSHA’s Respiratory Protection standard (29 CFR 1910.134). See CDC guidance.
• Protect those waiting to be screened. Use floor markers, stanchions, or barriers to guide individuals to keep six feet of distance while waiting in line to be screened. In addition, consider providing multiple screening entries into your building. See CDC guidance.
• Set the screening up for confidentiality. Employers must keep all health information of employees confidential. When conducting temperature checks, make sure to use a privacy booth, separate room, or partition to ensure the tested worker’s temperature is not visible to other workers. Similarly, if employees are filling out symptom/contact screening surveys, make sure they are far enough apart that the surveys cannot be viewed by others in the area (with the exception of an administrator who may need to review them). If you’re conducting COVID-19 diagnostic testing (or have hired a third-party to do so), make sure results are kept confidential. Keep in mind recent OSHA guidance indicating that “medical documents” may trigger the agency’s medical records rule requiring records to be kept confidential and held for at least 30 years. If you keep a temperature log, consider recording that the individual has been tested and whether or not they have a fever, but not the actual temperature, because it is less likely that a log without the actual temperature would be considered a “medical record” under OSHA. If you do keep employee medical information (including employee temperatures), make sure to keep the information for each employee in a confidential medical file separate from the employee’s personnel file. See EEOC guidance.
• Determine whether to pay employees for their time. Many states and municipalities require employers pay or reimburse employees for “business-related expenses.” This may apply for employers requiring employees to be screened or tested for COVID-19 before entering the workplace. In addition, although far from certain, waiting to be tested and submitting to a screening could be argued to be “hours worked” under the Fair Labor Standards Act (FLSA). Though only loosely related, the Department of Labor (DOL) opined in a FLSA opinion letter regarding employer-mandated drug tests that “attendance by an employee at a meeting during or outside of working hours for the purpose of submitting to a mandatory drug test imposed by the employer would constitute hours worked for FLSA purposes . .[.]” The DOL also takes the position that, in addition to the time actually spent undergoing the test, time spent traveling to and from the test and waiting for the test would also likely be deemed hours worked. Between state and local business-related expenses reimbursement requirements and the FLSA, employers may want to play it safe and compensate employees for the time spent undergoing COVID-19 screenings or tests.
• Be prepared to send employees home. Have a protocol in place for sending an employee home if the employee has a fever, discloses symptoms or close contacts, or has a positive COVID-19 test result-but make sure you do it confidentially. Some companies have opted for a flyer that is handed to the employee indicating they are being sent home because of symptoms or known “close contact” exposure to COVID-19, or an email to the individual with a positive COVID-19 test result. Provide additional information regarding self-isolation and who to contact at the company to discuss paid or unpaid leave options. If employees are sent home, document it and keep it confidential.

The only constant for US employers in 2020 is change. For help navigating all of the current changes in your workforce during the COVID-19 pandemic, and those certain to come down the pike, contact your Baker McKenzie employment attorney.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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