PART III: Protocols for Tracking and Reporting COVID-19
The EEOC has announced that the taking of temperatures is permitted due to the significant risk presented by COVID-19. However, employers need to remember that current requirements under the Americans with Disabilities Act remain in place. Asking an employee about a pre-existing condition that may make them more susceptible is not permitted. Employers may be permitted to ask very general symptom-related questions but should not delve into employee personal health issues or the personal health issues of family members.
Employers implementing testing should develop protocols for monitoring test results regarding employees, as well as contractors, and workplace visitors. As it stands today, the number of tests available are insufficient to test every employee. However, once more tests becomes available, employers should consider whether to conduct COVID-19 testing and, if so, what type of test to conduct (i.e., blood, saliva, or nasal swab). Although additional government guidance on the types of permissible tests likely will be forthcoming, employers intending to implement testing should consider not only what type of test to use, but who will conduct the tests, how these personnel will be trained, whether the test must be performed in a clinical lab or by a licensed healthcare professional, who will be tested, how often tests will be done, and how test results will be maintained. As we discussed in Part II of this series, employers will likely need to pay non-exempt workers for time spent waiting to be tested.
Employers should take a consistent approach regarding the disclosure of COVID-19 symptoms by an employee and/or an employee’s having tested positive for the virus. Employers will need to inform other employees, but are not permitted to identify the individual with the positive diagnosis. Contact-tracing protocols, including sharing information as appropriate with public health authorities, employees, and workplace guests and customers should be implemented. Employers need to be able to determine where an employee was during the day and what other employees, vendors or customers were present in the workplace. Performing this task well is challenging when an employer is not permitted to identify the employee. Employers should consider implementing a “clock-in, clock-out” procedure and sign-in and sign-out sheets to determine who was in certain areas of the workplace on any given day. In the event employers have reason to believe a suspected carrier entered the workplace – whether by self-reporting or the display of symptoms – employers should plan for all employees to work remotely until test results have come back.
Employers should also take a consistent approach regarding requiring return to work and fitness-for-duty certifications, and should monitor guidance from the CDC and local public health authorities regarding reporting and contact tracing. An employee who becomes sick and tests positive for COVID19 during this time should not return to work until they are cleared by a medical professional. This may be complicated due to the fact that individuals are unable to access a health care system that is currently stretched in its capacity to provide care.
All policies concerning testing and return to work should be written and any actions taken pursuant to the written policies must be documented. Risk to employers is increased when employers operate without policies and documentation, or when they have policies but do not follow them.
NOTE: We expect to see numerous changes nationwide, and in local and regional orders and guidance as prior workplace restrictions begin to be lifted and new restrictions are issued governing workplace re-openings. We will continue to monitor developments, and update our advice and information accordingly.
We welcome you to review our upcoming blog posts – this is the third in a series of five – to obtain more detailed advice and guidance on many of the issues concerning COVID-19 and its effect on your business, and to contact Jennifer Weaver, Will Cherry or your Manning Fulton relationship attorney for assistance.
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