Covid-19 Health Screening And Creating Safe Workplaces For Employees And Customers

Vincenza Caruso-Valente, General Manager, Sterling’s Staffing, Retail, and Franchise Group

Click here to read the original article published by Retail IT Insights.

Keeping employees and customers safe is one of the biggest challenges facing businesses all over the world as they reopen their doors and incorporate new requirements for health protection and workplace safety.

Most businesses are currently working through defining best practices for this, leading with their values and acting in earnest to protect their employees, customers, and communities. This may include initiatives such as Covid-19 active virus testing, on-site temperature monitoring, distributing personal protective equipment (PPE) and sanitation supplies, and planning workplace and store layouts, as well as touchless convenience technologies for physical distancing and contactless transactions.

The unprecedented pandemic – and related CDC guidelines – mean that each company needs to define and manage a health testing program tailored for their specific circumstances. By partnering with a health screening service provider to plan and coordinate a complete, flexible end-to-end Covid-19 health testing program, employers and employees can work with experts and expect a program that follows CDC guidelines, minimizes stress, anxiety, and disruption while providing them with a general feeling of trust and safety for their workplace environment. With a customized and comprehensive health testing program, companies can build resilience and agility into their organization and help protect their workforce as they continue navigating the pandemic.

The current guidance from the ADA states that the Covid-19 virus is considered a “direct threat” to the safety of the workplace. Thus, temperature checks and Covid-19 active virus tests meet the job-related standard and are permissible under the ADA. Testing must be treated as confidential, and tests must be reliable and administered in a non-discriminatory way.

The EEOC clarifies, however, that antibody tests do not meet the ADA job-related standard, and the guidance states that requiring an antibody test before allowing entry to the workplace would violate the ADA. The EEOC relies on the CDC’s Interim Guidelines that antibody test results are not known to confer immunity, and “should not be used to make decisions about returning persons to the workplace,” (see A.7. of the June 17, 2020 Guidance) stating it will continue to closely monitor CDC’s recommendations and could update the guidance at a later date if the CDC recommendations change.

Other key guidance around medical exams and employee health screening include:

• Employers may ask employees about whether they are experiencing symptoms of the virus. Inquiries should be limited to those symptoms identified by the CDC and should be treated as confidential medical records.
• Taking employees’ temperatures is considered a medical exam and is permitted under the ADA standard. While logs may be kept, results need to remain confidential.
• Employers may require employees to stay home or leave work if they are experiencing symptoms or are ill.
• Active virus testing is permitted to determine whether an employee will be allowed in the workplace, but employers must ensure that the tests are accurate, reliable, and approved by the FDA.

The EEOC maintains that screening for symptoms and testing for the active virus are appropriate measures to take in determining the ability of people to safely enter the workplace.

As employers continue navigating these uncharted waters, there will undoubtedly be new developments that impact the workplace landscape, from advancements in screening, treatment, and prevention, to region-specific shifts in Covid-19 cases, to updated government orders and guidelines. Amid these evolving circumstances, the companies most effective at navigating this uncertainty will demonstrate a commitment to smart, flexible policy and decision making that ultimately prioritizes the safety of their employees, customers, partners, and broader communities.

For organizations of different sizes, industries, and regions, back-to-work programs will inevitably vary. At Sterling, we are seeing that, by and large, businesses want to do the right thing by their employees and are shaping decisions on new policies based on their company values, mission, and vision. As new best practices continue to be defined, organizations with a strong foundation of trust and safety will be best positioned to continue adapting, protecting their workplace, and achieving success.

For more information and to review current compliance-related matters, visit Sterling’s Covid-19 Testing Program page or call us at 833.342.4571 with any questions you may have.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.