Protect Employee Privacy While Testing for COVID-19
Enact a protective buffer for residents and staff without violating employee privacy.
As COVID-19 infections continue to plague the U.S., federal, state, and local oﬃcials continue to look for ways to mitigate spread while still encouraging people to venture back out into the world and have some semblance of “normal” life. Screening people for symptoms of COVID-19, the infection caused by the novel coronavirus SARS-CoV-2, and performing diagnostic tests have become commonplace, but these short-term goals may have long-term legal implications.
Employee health privacy rights are not diminished by the public health emergency (PHE), and even though employers need to intrude somewhat on employees’ privacy, with body temperature and symptom screenings, for example, they should be careful to not overstep, says Karla Grossenbacher, JD, partner in labor and employment at Seyfarth Shaw LLP, in Washington D.C. Now that a vaccine is available, employers should also consider implications for requiring employees to be vaccinated or to show proof of vaccination.
Build Common Sense Into CDC Guidelines
There’s no question that healthcare workers are on the frontline and are at risk for exposure to COVID-19. Practices that want to protect employees who may be at higher risk for serious complications from COVID-19, without invading their privacy, should let these individuals self-identify whether they have any conditions that put them in the high-risk category and then honor their concerns, Grossenbacher says.
Although the U.S. Equal Employment Opportunity Commission (EEOC) recommends that employers stay abreast of and follow the Centers for Disease Control and Prevention (CDC) and other public health agency recommendations, the EEOC outlines some crucial language that employers should be aware of when navigating employee protections without interfering with their privacy or chancing discrimination.
Federal agency, public health, and professional organization guidance have all encouraged employers to prioritize safety as they pursue a return to business, and screening employees has been recommended consistently. The recommendations from the CDC for healthcare personnel (and others working in medical oﬃces or facilities) have included taking employee temperatures before each shift, as well as running through a symptoms questionnaire. The CDC doesn’t specify who exactly should be conducting these screenings, though the agency does mention that the screenings should, ideally, occur before employees enter the oﬃce or facility.
Evaluate Carefully When Establishing Organization Policy
Employers should think carefully about who is tasked with doing this work — and how to protect everyone’s physical safety, as well as privacy. Even if the employer is legally taking employees’ temperatures, the ways in which the employer conducts this screening could create privacy concerns or even be against the law, Grossenbacher says. While most workers seem grateful for all the precautions organizations are taking to protect them, litigation from disgruntled employees is always a possibility, especially if employers overstep. Although a staﬀ member who works at the front desk or provides security outside the oﬃce may be the most convenient, logistically, a human resources staﬀ member who has the training to prioritize discretion may be a better choice.
Grossenbacher lists these questions as points to consider: Are employees’ temperatures recorded? Who has access to that information? Do staﬀ members wait in a physically distanced line to be screened, but with the possibility of overhearing others’ results? What happens if someone comes to work and has a fever? How is the designated screener protected physically?
One option is to encourage employees to screen themselves, which obviously requires more trust for both employer and employee, as well as among colleagues.
Even if you’ve been operating with rather ad hoc protocols, the increasing rate and widespread nature of the pandemic should bring new focus. Make sure to establish procedures and write them down. Keep staﬀ in the loop and keep communication lines open so employees can voice their concerns and fears, or even conﬁde personal challenges they may be navigating outside of work that may be aﬀecting their performance.
Don’t Overlook Labor Guidelines
If you’ve experienced any staﬀ turnover, there are special labor guidelines that may be pertinent to your hiring situation. The EEOC says that during the PHE, and consistent with CDC guidelines, employers may test new hires before their start date, delay anyone who tests positive from starting, and even withdraw a job oﬀer if the potential hire has COVID-19, as they cannot work safely.
However, it is not legal to withdraw a job oﬀer or postpone the start date unilaterally for a potential hire who is older than 65 or who is pregnant, even though these factors may make the person at higher risk for more serious complications from COVID-19, the EEOC says. An employer should instead make accommodations such as oﬀering telework, if the role allows such ﬂexibility, or determining whether the individual would prefer to postpone their start date. Some provisions of the Americans with Disabilities Act (ADA) come into play, too, depending on the type of test administered.
Antibody tests for COVID-19 are subject to diﬀerent rules from the EEOC than the tests that detect the presence of SARS-CoV-2, the virus that causes COVID-19 infection.
“An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results ‘should not be used to make decisions about returning persons to the workplace,’ an antibody test at this time does not meet the ADA’s job related and consistent with business necessity standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA,” the EEOC says.
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