This is the information we have as of June 9, 2020. We will endeavor to send updates as further state and federal government guidance becomes available.
On a webinar we held recently, members of our COVID-19 team addressed a number of issues employers should consider as they reopen their businesses. You can view the video recording of the webinar here.
One of the questions put to us was about whether testing employees for COVID-19 is an effective way to ensure the safety of staff and confidence of customers who interact with them. “It’s definitely a good idea to test if you want to get back to work more quickly and perhaps limit the liability of it spreading in the workplace,” said Rooney Nimmo employment counsel Dan Braverman, “but there is a lack of guidance, which puts business owners in a tenuous situation. Without a coherent government response, it is difficult for businesses to determine when, where and how often to do testing, and that’s assuming they can procure enough tests to cover staff on an ongoing basis,” Braverman continued.
Back in April, the federal Equal Employment Opportunity Commission (EEOC) told businesses they could test employees for COVID-19, an exemption from the Americans with Disabilities Act. They recently issued guidance permitting employers to take employee temperatures and conduct viral COVID-19 tests. This guidance is based on the reasoning that an employee with COVID-19 poses a “direct threat” to others, as defined by the EEOC as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” They also advised that any test must be “accurate” and “reliable” based guidance from the Food and Drug Administration and the Center for Disease Control (CDC).
What are the test options for employers?
Employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever. And some people with a fever do not have COVID-19. However, with that in mind, some businesses are taking the temperatures of their employees and visitors and prohibiting any individuals with fevers from entering their premises.
Who should take temperatures? If a company has an onsite nurse to administer temperature checks that would be ideal, but for many companies, they would need a willing volunteer. With proper training, personal protective equipment, a no-touch thermometer, and an understanding of confidentiality considerations, a nonmedical professional can take temperatures and help keep the workplace safe. However, before lining up your staff to administer temperature checks, employers should consider the following:
- How will an employer select an employee to administer the infrared scan?
- How will that employee be protected from the virus?
- How will the privacy of employees subjected to the infrared scan be protected?
- How will this action affect employee morale?
Virus or Molecular Coronavirus Testing
The CDC recommends a COVID-19 test called a nasopharyngeal swab. Typically, a technician will put a special 6-inch cotton swab up both sides of your nose and move it around for about 15 seconds. It won’t hurt, but it might be uncomfortable. This test is commonly administered at a testing site with results returned within minutes.
Alternatively, the test can be conducted at home and sent to a lab for analysis, which can take several days to return results. If a test comes back positive, it is likely the individual has an active COVID-19 infection and can possibly transmit the virus to others. Some employers are requiring their employees to obtain negative viral tests in order to come back to work. However, a negative test showing that the employee does not currently have the infection doesn’t mean that they can’t be exposed and get sick.
Antibody of Serological Testing
Antibody tests rely on detecting antibodies in a blood sample, usually obtained through a simple finger prick. These tests do not require special equipment to process the results, which allows them to be used in laboratories or at point-of-care. A positive result shows that the employee was previously infected and developed antibodies to the virus. However, Antibody tests should be approached with caution, since antibody testing does not identify employees with a current COVID-19 infection nor has it been determined that someone with the antibodies present can’t become infected again. In fact, the CDC recommends that antibody tests alone should not be used to make decisions about returning employees to work.
Proceed with Caution
Given the lack of unified guidance, employers should take a cautious approach to implementing employee testing for COVID-19; carefully weighing the pros and cons. If you decide to move forward, make sure you invest the time to create the appropriate policies and procedures to ensure the privacy, legality, and safety of all involved. Regardless of how you proceed, it is advisable to follow best practices on infection control – keeping a clean workplace, practicing social distancing, etc.
This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.