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The Equal Employment Opportunity Commission has acknowledged that the Covid-19 pandemic presents a direct threat to employees and allows employers to conduct Covid-19 testing, temperature checks, and health screenings without violating the Americans with Disabilities Act. See EEOC's Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.
Workplace Covid-19 testing, temperature checks, and health screenings will continue to prevent and control the spread of Covid-19 even as vaccination becomes more widespread. Vaccines are most effective at preventing Covid-19 illness, not infection, making workers who are unable or unwilling to get vaccinated still at risk if exposed. See CDC's Key Things to Know about COVID-19 Vaccines.
Testing, temperature checks, and health screenings add another layer of protection against the spread of Covid-19 in the workplace but by themselves will not guarantee a virus-free work environment. Workers can contract the virus after testing or spread the virus while awaiting their test results. Temperature checks can be more frequent than testing, but Covid-19 does not cause a fever in every person and individuals may be able to transmit the coronavirus before showing any symptoms. See CDC Coronavirus Disease Resources: How COVID-19 Spreads. In order to account for the potential absence of this symptom, employers should still implement and enforce social/physical distancing protocols, increased cleaning, and other safety measures.
Employers that choose to implement Covid-19 screenings should be aware that the EEOC's guidance does not set aside other employment laws. Employers must ensure that they remain in compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Fair Labor Standards Act, the Occupational Health and Safety Act, and all applicable federal, state, and local laws.
Before engaging in any kind of Covid-19 or health screening, employers should implement clear policies and consider worker safety, confidentiality, wage and hour obligations, and employee noncompliance.
Implementing screening policies can help communicate expectations to employees, improve employee compliance, and ultimately better protect workers. Policies should:
• Clearly communicate what type of screening will occur and how it will be conducted.
• Request or require employees to self-screen at home for symptoms of Covid-19.
• Require employees who have temperatures or symptoms of a Covid-19 infection to stay home.
• If using testing, describe testing procedures, including the type of test, how often the test will occur, and when and how employees can expect to see their results.
• If using temperature checks, describe temperature check procedures, including the temperature threshold that will be used (The CDC defines a fever as a temperature that is 100.4F (38C) of higher. See CDC Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), May 2020.)
• Describe any health screening questions that will be asked. See CDC's Symptoms of Coronavirus.
• Inform employees that their health information will be kept confidential.
• Inform employees of their leave rights if they are infected with or exposed to Covid-19. See Federal and State Comparison Chart: Paid Sick Leave.
• Notify employees of their right to request disability or religious accommodations, but not guarantee that accommodations will be provided.
• Inform employees that compliance is mandatory and describe penalties for noncompliance.
Although temperature checks and health screening are intended to protect workers, the process could put employees more at risk of infection. Employers should consider implementing the following safety measures:
• Mandated physical/social distancing and use of personal protective equipment (PPE) or cloth face coverings during the screening process;
• Training, use of protective barriers, PPE, cloth face coverings, and physical/social distancing protocols to protect workers tasked with conducting screenings;
• Providing trained medical professionals to perform Covid-19 testing, or implementing self-testing if appropriate;
• Use of touchless thermometers; and
• Mandatory at-home screening in addition to or instead of on-site screening.
Employers are required to comply with the ADA's confidentially provisions. Employers should be careful to maintain employee privacy throughout the testing and screening process and maintain any records of employees’ health screenings separately from their personnel files. See Smart Code® - 29 C.F.R. § 1630.14(c)(1); EEOC's Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.
Some employees will not or cannot comply with Covid-19 testing, temperature check, or health screening requirements. While employers generally are permitted to set policies for managing their workforces, there are laws that protect employees’ ability to object to or refuse to comply with employer policies. See Covid-19 Mandates and Employee Noncompliance.