The U.S. Equal Employment Opportunity Commission (EEOC) has released additional guidance for employers on what they can do when employees begin returning to work to balance a safe work environment with employment laws. The publication can be found at:
The publication, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, provides questions and answers regarding what an employer can and can’t do. The most updated version was released May 7, 2020 and the information below is based thereon.
Bottom line: Employers are authorized to test employees for COVID-19 symptoms as they return to work because this pandemic is a “direct threat” to others.
With that said, what are the operational considerations an employer should think about as employees return to work?
Below is a checklist of issues to consider when making decisions. They are in no particular order. Please consult with your attorney as these issues are novel and involve managing risk.
- Will you test employees for a fever? If so, general recommendations are to use a thermal red thermometer instead of an oral one; however, this will require equipment purchases and potentially, lead time.
- Who will conduct the test?
- If you have a medical professional on staff, that is great, but most do not or cannot hire one. Accordingly, try to get a volunteer and remember that, if that individual is part of a bargaining unit, to discuss with the union representative.
- Make sure to get the individual training on how to administer the test, how to record the information and how to keep it confidential.
- You will also want to get them appropriate PPE, e.g. gloves, masks, eyewear, gown, etc. This may require advance purchasing.
- Ensure this individual does not have symptoms. For example, they may want to take their own temperature first to ensure they do not have a fever and the thermometer works correctly. Make sure to record that information.
- Will you ask questions instead of or in addition to the temperature test? Some businesses are asking employees if they have symptoms of COVID-19 (e.g. fever, coughing, shortness of breath, chills and sore throat – check updated CDC guidance) and have they undertaken any high risk activity such as travel or been to a location outside their safety bubble with new people or without appropriate social distancing. The questions can be in a written form or orally with a check mark next to the employee’s name.
- What will you do if the employee has symptoms, e.g. registers a fever? Safest practice is to recommend the employee seek testing, self-isolate and obtain medical attention to confirm. In Washington, employees can use sick leave, Washington State Paid Family Medical Leave, or federal Families First Coronavirus Response Act leaves.
- How and where will you do the test? CDC guidance (April 8, 2020) suggests that testing should be prior to starting work and before entering the facility. If employees form a line to be tested, think about how you will queue them (e.g. 6’ apart for social distancing), where the testing will be (e.g. covered area?), and if their work day starts for pay purposes when they should arrive to wait in line.
- What will you do with the information? Standard procedure is to keep it confidential and to keep it separate from an employee’s personnel file.
- How will employees receive the testing – morale? Consider the effect on your employee’s morale and how will the testing be interpreted. You may want to consider explaining ahead of time, so they understand the “why” and the concern you have for them.
If you have questions regarding remote working, please contact either Richard Davis, Matt Paxton, or Les Reardanz at Chmelik Sitkin & Davis P.S. at 360.671.1796.