COVID-19 pandemic has presented unique challenges to business owners and leaders as they continue to serve their customers while keeping the well-being of their employees front and center.
As states across the country cautiously lift shelter in place orders, businesses need to evaluate the safety precautions they are undertaking as well as consider safety protocols they need to implement to help ensure the welfare of their workforce.
Recently we kicked off our blog series helping businesses transition their employees back to the workplace. While there is no “one size fits all” approach to this difficult process, through our blog series we hope to provide some guidance to help businesses during these unprecedented times.
Today’s blog highlights some steps you need to take to monitor your employees’ health and manage a positive case in your workplace.
It is important to implement safeguards for the health of your employees before you require your employees to return to the workplace.
After reopening, you should continue to monitor your workforce, remind your employees to stay diligent for symptoms of illness, and prevent symptomatic individuals from the worksite until cleared by a medical provider.
In fact, as of the publication of this blog, 25 states require employers of at least certain types of businesses to either take their employees’ temperatures daily or otherwise screen their employees for symptoms. This does not include localities like counties and cities that also require some form of screening of employees within their jurisdictions. Nor does this number include states that require screening for “front line” workers such as healthcare professionals or law enforcement.
The Equal Employment Opportunity Commission (EEOC) in its Technical Assistance Questions and Answers stated its position that an employer may take an employee’s temperature or require a diagnostic (viral) test for COVID-19 before they enter the workplace. The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the circumstances of the COVID-19 pandemic, employers may conduct diagnostic tests or use other measures to evaluate whether employees entering the workplace have symptoms indicative of COVID-19. That’s because an individual with the virus will pose a “direct threat” to the health of others, in the language of the ADA. However, the CDC indicates that antibody tests should not be used to evaluate whether employees may return to the workplace, and the EEOC correspondingly has issued guidance prohibiting the use of antibody testing as a condition or factor in allowing employees to return to the workplace at this time.
Consistent with the ADA standard, you should determine in advance whether you as an employer are required to – or may wish to – conduct temperature checks or viral diagnostic tests of employees directly, or use a system of employee self-evaluation of symptoms and reporting consistent with current safety guidance. If you elect to conduct any testing, such as temperature checks, you must ensure that the tests you administer are accurate and reliable. For example, you should review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Make sure to check for updates, as this is a rapidly developing field. (Of course, the availability of viral diagnostic tests or lack thereof may pre-empt any of these considerations.)
While the EEOC may permit employers to conduct viral diagnostic testing of employees for COVID-19 in this extraordinary environment, to avoid claims of discrimination, an employer should apply these three principles in doing so:
Keep in mind that temperature checks and diagnostic tests are considered medical exams that must be conducted in a confidential manner and the results maintained in a separated medical file. Further, PPE should be provided to employees administering tests, screening, or temperature checks, as well as advance training on how to properly use the PPE. You should provide proper training on blood borne pathogens for those that may have an exposure to bodily fluids as part of their job
If your company does business in California (e.g., if you have one or more locations, employees, customers, suppliers, etc. in the state) and your business is subject to the California Consumer Privacy Act (CCPA), then you must provide employees a CCPA-compliant notice prior to or at the same time as your collection of this information.
If your workplace does see a positive case of COVID-19, either from employee self-reporting or through diagnostic testing, the following four-step process is recommended:
Frequent and strategic communications are a necessity until this pandemic is behind us. When employees trust that their employer is honest and transparent in communications and taking every step possible to help ensure their safety, they will be more likely to return to work and perform their jobs as required.
If you are a TriNet customer and would like more information about how TriNet can help you transition, please contact your TriNet Customer Experience contact.
Visit the TriNet COVID-19 Preparedness Center for critical and up-to-date information as well as the impact of changing regulations on small and medium-size businesses. We will continue to monitor the COVID-19 situation and provide updates as necessary
This communication is for informational purposes only; it is not legal, tax or accounting advice; and is not an offer to sell, buy or procure insurance.
This post may contain hyperlinks to websites operated by parties other than TriNet. Such hyperlinks are provided for reference only. TriNet does not control such websites and is not responsible for their content. Inclusion of such hyperlinks on TriNet.com does not necessarily imply any endorsement of the material on such websites or association with their operators.
Senior Vice President,
Chief Legal Officer and Secretary,