Does Your COVID-19 Employee Health-Screening Policy Need an Update?

Employers that conduct daily temperature checks and other COVID-19 health screenings may want to review and revise their policies as rules and recommendations change, particularly in locations with high COVID-19 transmission rates.

New coronavirus cases in the U.S. recently dropped below 100,000 a day for the first time since Aug. 3, but the U.S. Centers for Disease Control and Prevention (CDC) is still reporting a rolling seven-day average of about 95,000 new cases and more than 1,200 deaths each day. Additionally, more than 95 percent of U.S. counties are experiencing substantial or high COVID-19 transmission rates.

To help keep employees safe and curb the spread of the coronavirus, the CDC recommends that employers consider conducting daily in-person or virtual health checks before employees enter the worksite, and some jurisdictions require such screening. Here are some key points employers should note about conducting these health checks.

Review State and Local Rules

Some states and localities require or recommend that businesses conduct employee health screening in certain situations. For example, in California, employers must comply with the state's COVID-19 Emergency Temporary Standards, which require employers to ensure employees don't enter the worksite if they have symptoms or have been exposed to the coronavirus. "Employers should also have procedures to screen employees for COVID-19 symptoms and must have a plan to keep other employees safe in the workplace," according to the California Department of Industrial Relations.

Nevada's Occupational Safety and Health Administration (OSHA) requires screening and recommends temperature checks. "While temperature checks are not specifically required, Nevada OSHA expects employers to monitor employee health conditions by conducting daily surveys of changes to employee health conditions," according to the state's website. "Temperature checks are a useful method of identifying potentially infectious people in the workplace and can serve as a method of screening for health issues."

Law firm Littler Mendelson has a list of statewide orders and noted that local laws may apply in addition to state requirements.

"Even if state or local law does not require any screening mechanisms, employers are able to implement temperature checks or other types of screening prior to allowing employees or other visitors to enter the worksite," noted Michael DeLarco, an attorney with Hogan Lovells in New York City.

Medical Inquiries

"Employers need to understand that temperature checks and health-screening questions are medical questions," said Brooke Schneider, an attorney with Withers in New York City. "And so, like any other inquiries into health, employers need to consider wage and hour laws, disability laws, privacy laws and document-retention laws. All come into play when an employer is setting up policies that deal with health concerns."

The Americans with Disabilities Act prohibits employers from requiring medical examinations unless they are job-related and consistent with business necessity. For pandemic-related screens, the U.S. Equal Employment Opportunity Commission has said employers may measure employees' body temperature but should note that some people with COVID-19 don't have a fever (and some people with a fever don't have COVID-19).

Employers should vigilantly track changing guidance from the CDC when tailoring their COVID-19 protocols, said Angelo Filippi, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla. Disability laws require that the results of COVID-19 screenings be kept confidential, he noted.

If a manager learns that an employee has symptoms, was exposed or has tested positive, however, that information can be reported to appropriate company officials who can implement contact-tracing steps and notifications pursuant to CDC guidance, Filippi explained.

So who should be administering the health screens? "Because health screens deal with health information, it is best to have a designated person doing the screening—preferably an HR or operations manager—who understands the privacy concerns employees may have, as well as the fact that the information should not be disseminated to others," Schneider recommended.

Alternatively, employees may self-screen. Mini Kapoor, an attorney with Haynes Boone in Houston, noted that current laws and guidance generally allow ­employees to self-screen prior to entering the workplace. Employees will typically record their responses each day on an employer-approved app on their mobile phones or another electronic form which can be stored confidentially.

"This approach appears to be most convenient, and certainly less cumbersome than having a screening station in the workplace where screening is required to be performed manually by a trained screener," Kapoor said.

Compensation Considerations

Do nonexempt employees need to be paid for the time spent in health screenings? "It depends on a number of factors, such as how long it takes the employee to complete the health screening and where they are located," DeLarco said.

Filippi noted that the issue is unsettled. A U.S. Department of Labor regulation provides that time is compensable when the employee is waiting for or receiving medical attention at the worksite or at the direction of the employer during the employee's regular work hours. The pre-work activity is compensable if it is integral and indispensable to the employees' principal work activities and is done for the benefit of the employer.         

"The argument against compensability is that temperature checks are not a part of the performance of job duties, thus they are not integral to job performance," Filippi said. "On the other hand, it can be argued that without the check, the employee cannot work, therefore it is integral to the performance of duties, particularly when there are federal, state or local mandates that dictate such checks before employees return to work."

If an employer decides to pay for this time, he said, then the clock starts when the employee is waiting for the screening.

Schneider recommended that employers pay for employee time spent on health screenings at the worksite. "Employers who do screening must count this time as 'work time' because it is for the benefit of the employer and part of their policy," she said. "Accordingly, if employees are waiting in line to be screened, that time counts as well as the time for the screening."

Clear Expectations

If conducting health screenings is part of the employer's policy, then an employee who does not comply could be subject to discipline, DeLarco explained.

Schneider said policies should be in writing to help ensure they are being enforced uniformly and there is no ambiguity about the employer's expectations.

"If your line-level employees are being required to do health screening, then senior employees should do so as well—even the CEO," Schneider noted. "In so doing, not only do you reinforce the legitimacy of the policy, but it can help to avoid claims of discrimination."