Is It Legal to Test and Monitor Employees for COVID-19 Infection?

CoAdvantage- In general, employers are prohibited by anti-discrimination and privacy regulations from delving too deeply into employees’ medical histories and conditions. However, the COVID-19 pandemic presents an unprecedented threat to workplace health and safety, so the Equal Employment Opportunity Commission (EEOC) has issued guidelines that specify employers may require COVID-19 testing and may require a negative result as a condition of entering the workplace:

“Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.”

However, the EEOC does note that “employers should ensure that the tests are accurate and reliable” and recommends that employers use guidance from the U.S. Food and Drug Administration (FDA) and the U.S. Centers for Disease Control (CDC). Not all tests are equally effective. For example, antibody tests are not necessarily reliable indicators of either infection or immunity. Follow FDA and CDC guidance regarding tests.

What if you can’t find tests? Try an alternative screening method.

1: Screening by temperature.

It is not clear that temperature checks are wholly effective at catching cases of COVID-19. Many people who test positive for COVID-19 exhibit few or no symptoms, including elevated temperature. However, in the absence of tests, it is a recommended step. The EEOC allows temperature testing but notes they should be treated as confidential medical records.

2: Screening by symptoms.

Again, many people with COVID-19 exhibit few or no symptoms, but if employees or visitors present the symptoms associated with COVID-19 – including coughing, shortness of breath, loss of sense of smell or taste, etc. – it may warrant preventing them from entering. The EEOC allows asking about symptoms as long as they pertain specifically to COVID-19.

3: Refusal to cooperate.

Some employees may opt not to be tested or otherwise subjected to screening protocols. In this case, employers may refuse entry to the workplace.

Other concerns you should keep in mind (SHRM):

First, testing and screening procedures may require employee time, and employers may be required under existing labor laws to compensate employees for time spent taking and waiting on tests.

Second, consider what you will do if an employee or visitor who was recently inside the workplace suddenly tests positive – what steps will you take to alert the appropriate parties, clean the facilities, and possibly quarantine exposed personnel.

Lastly, Any form of screening must be applied on a non-discriminatory basis, i.e. everyone must be subject to them.

CoAdvantage, one of the nation’s largest Professional Employer Organizations (PEOs), helps small to mid-sized companies with HR administration, benefits, payroll, and compliance. To learn more about CoAdvantage’s ability to create a strategic HR function in your business that drives business growth potential, contact us today.