When employees return, they will find social distancing visual cues on floors, signs encouraging handwashing, and notices closing breakrooms. Wearing face masks, they may only show up on assigned days, alternating with co-workers to limit potential exposure to the coronavirus. And, before they get to their desk or station, they may be greeted with a new requirement: employee COVID-19 screening.
Small business owners must navigate this new landscape, guided by shifting employment rules and regulations from federal, state and local authorities that aim to lower the risks of contagion in close quarters.
And, while it’s easy enough to post a few signs on the wall and place hand sanitizer in common areas, when screening employees for coronavirus, employers must be particularly sensitive to issues of privacy and discrimination.
Here are the dos and don’ts of employee COVID-19 screening.
How can employers test or screen for COVID-19?
COVID-19 screening falls into two buckets: tests and symptom checks.
COVID-19 diagnostic tests
As the U.S. Food and Drug Administration describes, these tests determine if an individual currently has COVID-19. Samples are taken via a nasal or throat swab (known as in-vitro testing) and—depending on the lab—results may be returned within an hour.
Results from an antibody test can indicate whether a person has ever had COVID-19, but, as the FDA states, it doesn’t diagnose an active infection. Meanwhile,the Centers for Disease Control and Prevention cautioned against it in late May, citing issues with the tests. The CDC has further said these tests results should not be used when making decisions about employees returning to work. In light of this, the EEOC has specifically stated that an antibody test is not allowed under the ADA as it does not meet the requirements of being job related and consistent with business necessity.
During the COVID-19 pandemic, the EEOC gives employers a green light to assess employees for coronavirus through these screenings:
- Body temperature checks
- Symptom checks; according to the CDC, symptoms include (but are not limited to) the following:
- Cough or sore throat
- Shortness of breath or difficulty breathing
- New loss of smell or taste
- Self-reporting (the CDC offers a self-checker here); during a pandemic, employers are allowed to inquire about an employee’s potential risk due to travel.
The CDC offers guidance on how employers can screen their employees.
What should an employer consider before implementing a testing policy?
Under the Americans with Disabilities Act (ADA), a test to detect the presence of the COVID-19 virus is a medical test. To require mandatory testing, the test must be job related and consistent with business necessity. According to the Equal Employment Opportunity Commission (EEOC), under the ADA, employees can require COVID-19 tests for their employees before they enter the workplace given the current circumstances of the pandemic as long as the tests are accurate and reliable.
So … what’s considered accurate and reliable? The FDA offers guidance on what constitutes accurate testing and maintains a list of labs, indicating which are FDA authorized.
While federal agencies (like the EEOC and the CDC) issue guidance on what employers can do, it’s also vital to check in on state and local COVID-19 regulations as they vary widely. In some regions, symptom checks isn’t just recommended; it’s required.
If testing is not required in your region, give deliberate thought as to whether it is necessary. If you decide to proceed with testing, create a thoughtful implementation plan. Decide whether your employees should be tested at home or in the workplace, and make sure that testing is implemented consistently across your organization.
Consider the role of documentation; you may want to have employees sign a declaration before they enter the workspace or sign a document agreeing to your testing policy, and consult an HR specialist to be sure to avoid discriminatory practices.
What inquiries are employers not allowed to make?
Employers should not ask employees if they have underlying medical conditions that make them particularly vulnerable to the effects of COVID-19. Also, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from inquiring about the medical status of an employee’s family members.
Where to find COVID-19 tests, and who pays?
COVID-19 tests are increasingly available at drug stores, clinics and doctors’ offices; At-home COVID-19 tests are on the market. Employers also can hire health care providers to conduct tests, just as they would workplace flu shot clinics or drug screens.
When employers require COVID-19 testing, they must be mindful of how employees comply with the mandate, said Jessica N. Childress, managing attorney of The Childress Firm in Washington, D.C.
“If the employer is requiring that testing to be conducted, the employer needs to actually be compensating the employee for that testing,” Childress said. “They shouldn’t be required to pay for testing if the employer isn’t providing testing for them.”
To avoid running afoul of the Fair Labor Standards Act (FLSA), non-exempt employees, who are paid hourly, also must be compensated for the time they spend to get screened or tested.
“They clock in as soon as they are waiting to get any temperature check, any swab and any testing that’s occurring,” Childress said.
What’s the best way for employees to communicate new COVID-19 protocols?
As anxious workers return to the workplace, worried about their health or how they’ll care for their kids with camps and schools closed, employment experts say employers must not only be clear in their communications, but kind and sensitive.
“People have experienced trauma in the last few months in a variety of ways,” said Kimberly N. Prescott, president of Prescott HR in Maryland.
Send out details about your testing policies to employees before they return and post them in the workplace too, including why the tests are conducted, how they will be conducted and what will be done with the results. “Be as transparent as possible,” Childress said.
Any employee COVID-19 screening also should be part of a broader strategy to protect workers that includes, for example, social distancing and PPE. With all the new policies and protocols, employers should treat returning employees almost like new hires, Prescott said.
“Have an actual onboarding for people who are returning because they aren’t returning to the same workplace they left,” Prescott said. “Set expectations around social distancing, closing off common areas so people aren’t congregating. … And communicate that regularly when they first come back to work.”
It’s easy, after all, to fall back into routines.
“It’s just constantly reminding people, ‘Let’s not get too comfortable, we all have a responsibility to remain vigilant for each other,’” she said.
Which employees should be tested for COVID-19, and what to do if they refuse?
To keep testing-related discrimination claims at bay, employers must test all workers—not just those who deal directly with the public, for example.
“You should not be testing one group and not testing another group. This should be for all employees,” said lawyer Whitney M. Dowdy, a shareholder with Baker Donelson in Memphis, Tennessee, who specializes in employment law. “This is a good way for an employer to lead from the top down.”
If employees refuse testing or screening, you may be able to send them home, Prescott said. “At the point where they implement that, it becomes a work requirement,” she said. “If they are refusing a work requirement, you don’t have to allow them to work.”
Before you send an employee home, be sure to consider whether the employee is refusing due sincerely-held religious beliefs. In this case, seek advice from an HR specialist on how to proceed.
What should employers do if an employee tests positive for COVID-19?
If an employee tests positive for COVID-19 or arrives at work with COVID-19 symptoms, employers should send them home, Dowdy said. They can require sick workers to stay home until they have a doctor’s note that it’s safe for them to return or have met other guidelines for ending self-isolation.
“If somebody does not pass the screen—either they have an elevated temperature or are experiencing symptoms—they shouldn’t be allowed to come in,” Dowdy said.
Employers also have other responsibilities when a worker is sick with COVID-19. The federal Occupational Safety & Health Administration requires many workplaces to record confirmed cases of COVID-19. They’ll typically need to alert local health authorities, who will launch contact tracing to identify others who may have been exposed to the virus.
How do I protect my employees’ privacy while also limiting exposure?
When an employee tests positive for COVID-19, the employer should consider both the positive employee’s privacy—test results are technically Protected Health Information (PHI)—while also being thoughtful about the risks posed to other members of your workforce.
Test and screening results should be logged but maintained separately from other employee information and should only be shared with those on a need-to-know basis. To ensure greater privacy, it is advisable to designate one or only a few employees to perform the testing and screening. Further, any such individuals—likely from HR or an executive team—should be informed and aware of the privacy obligations owed to all employees.
When employees are alerted that a colleague has tested positive for the illness, employers must be careful in their communications. Don’t name names. Instead, inform workers that somebody on the jobsite is sick with COVID-19 and they should monitor themselves for symptoms and may need to get tested. An employment attorney can help employers craft the right notification.
Confidentiality also is critical when gathering information from COVID-19 screenings and tests. Federal law considers any results protected health information. The data must be kept separately in a medical file that’s not part of the worker’s personnel file.
“We don’t want that information in the hands of our frontline supervisors,” Dowdy said. “It should be either someone on the executive team or HR.”
Keeping the information private also can help prevent any stigma that might be attached to workers who do catch the coronavirus or were sent home because of troubling symptoms. Dowdy acknowledged that it can be tough to avoid rumors among a worried workforce. But not every sore throat or, even, positive COVID-19 test means that a person is sick with the illness. “I think the main message is we’re being as cautious as we can to make everyone safe,” Dowdy said.
What COVID-19 resources should employees extend to employers?
Beyond informing them about ways to stay on top of any potential symptoms and best practices for reducing risk in the workplace, small business owners also should understand the benefits their workers qualify for through efforts like the Families First Coronavirus Response Act. The federal law provides for up to 80 hours of paid sick leave and up to 12 weeks of family and medical leave for issues related to COVID-19, and many state and local governments have expanded benefits for workers.
For small business owners, the new rules and regulations can seem overwhelming, especially as they grapple with the consequences of a pandemic that’s causing economic disruption around the world. When screening employees for COVID-19, Prescott counsels her clients to only ask the questions and get the information they need to move forward.
“Really just focus on what we need right now,” Prescott recommended. “Are you healthy to enter the workplace today and are you going to follow the requirements we’ve set? … As long as you’re willing to do those things, that’s all we need to focus on as an employer. Period.”