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Screening Employees for COVID-19 Symptoms: Tips and Traps for Employers

on Monday, 29 June 2020 in Covid-19 Information Hub

Currently, at least 43 states either require or recommend that employers conduct daily health screening of employees for COVID-19 symptoms.  Moreover, 30 of those states either require or recommend employee temperature screening.

Health and temperature screening is also required or recommended by health departments across the nation.  Additionally, the Centers for Disease Control and Prevention (CDC) recommends that employers consider conducting daily in-person or virtual health screening of employees before they enter the workplace.

Screening employees for COVID-19 symptoms raises numerous practical and legal issues for employers. Some of those issues are directly addressed by state and local laws which require such screening (e.g.,specific questions that must be asked).  While those laws must always be followed, this article identifies general tips, traps, and considerations for employers when no specific state or local law applies to the contrary.

Health Screening

Effective employee health screening for COVID-19 symptoms need not be complicated.  It is a two-step process that may or may not include temperature screening.

Step 1 involves asking each employee before entering the workplace a series of basic questions.  Those questions are subject to revision as the CDC identifies new COVID-19 symptoms.

Step 1 questioning can be accomplished either virtually or remotely before an employee comes onto the premises, or onsite after an employee’s arrival.  The advantage of pre-arrival screening is that an infected employee cannot infect any other employee.

Following are the Step 1 questions that should be asked of employees either virtually/remotely, or onsite:

Since the last time you were here have you experienced any of the following?

    1. Fever or chills?
    2. Cough?
    3. Shortness of breath or difficulty breathing?
    4. Fatigue?
    5. Muscle or body aches?
    6. Headache?
    7. New loss of taste or smell?
    8. Sore throat?
    9. Congestion or runny nose?
    10. Nausea or vomiting?
    11. Diarrhea?
    12. Close contact with someone who tested positive for COVID-19?

Step 2 comes into play if an employee affirmatively answers any of the foregoing screening questions or is otherwise identified (by visual observation, temperature screening, or otherwise) as having one of the symptoms or exposure to someone infected by the virus.

If the screening is being conducted in person and the employer does not have onsite occupational health services, then the employee who has a symptom should be sent home immediately and undergo further evaluation from a health care provider.  The employee should also be required to authorize any facility conducting COVID-19 testing to release the results to the employer.  This will help the employer quickly identify any “hotspots” for transmission within the workplace and perform follow-up with potentially infected co-workers.

In-person health screening should be conducted as safely, respectfully, and privately as possible.  Employers should also follow guidance from the U.S. Equal Employment Opportunity Commission (“EEOC”) regarding confidentiality of medical information and records obtained from health screening.  Of course, determinations of risk must never be based upon an employee’s race or national origin.

From a compensation standpoint, it should be noted that an employee’s time spent participating in health screening may be deemed by the U.S. Department of Labor’s Wage & Hour Division to be compensable working time.

Temperature Screening

The EEOC, CDC, and Occupational Safety and Health Administration (OSHA) have all given the “green light” to employers to conduct employee temperature screening during this pandemic.  Currently, the CDC considers a symptomatic fever to be a temperature of 100.4°F or higher.

Employers can require employees to take their temperature at home before reporting to work, and to disclose that temperature to the employer.  Alternatively (or additionally), an employer may take the employee’s temperature while in the workplace.

Temperature screening should be completed as part of the “Step 1” health screening previously discussed – either immediately before or after the employee health questions – as temperature screening alone will likely be ineffective.  More than 30% of COVID-19 cases do not report fever or feeling feverish.

If temperature screening is undertaken, then employers should choose infrared digital thermometers over oral or aural (ear) thermometers, as infrared thermometers are less invasive.  But infrared thermometers are also often imprecise.  Some health authorities, therefore, recommend that if an infrared thermometer produces a reading of at least 99.5°F, that a second temperature reading be taken with an oral or aural thermometer.

Pay for Time Spent in Screening

Employee health screening for COVID-19 symptoms could run afoul of the Fair Labor Standards Act (FLSA) and state wage and hour laws if employers do not pay employees for their time spent in screening, particularly if the waiting time is substantial.

The issue comes down to whether the screening is an activity which is “preliminary or postliminary” to an employee’s principal activities.  Courts have determined that certain activities satisfy this standard and are compensable: (1) if the activity is for the employer’s benefit; (2) is undertaken to prepare for the performance of the principal activities; or (3) if it is intended to protect the employee against unusual workplace dangers.

On the other hand, standard pre- and post-shift security procedures not related to employees’ principal activities have been considered not to be compensable time under the FLSA.  In 2014, the U.S. Supreme Court held in Integrity Staffing Solutions Inc. v. Busk that Amazon’s post-shift anti-theft employee screenings were neither a principal activity nor “integral and indispensable” to the retrieving or packaging of Amazon’s products.

Whether courts will apply the same reasoning to COVID-19 symptom screening in undetermined.  Indeed, courts could conclude that such symptom screening may be a pre-shift activity that protects the employee against unusual workplace dangers, or that it is primarily undertaken for the benefits of the employer.

The take-away for prudent employers, therefore, is to compensate nonexempt employees for the time they spend in health screenings.

Protecting the Screener

Some employers – especially larger ones – have contracted with third parties to conduct employee COVID-19 symptom screening.  These contractors are typically occupational health or other health care organizations.  So long as an employer does not exercise control over these organizations’ employees, the employer should not be responsible for the screeners’ safety and health.  Instead, that responsibility should fall on the organizations employing the screeners.

For most employers, however, it is not economically feasible to hire a third party to conduct employee health screenings on a daily basis.  Therefore, they must rely upon their own employees to conduct the screens.

We have seen news images of health care professionals conducting actual COVID-19 testing.  They wear face shields, N-95 respirators, gowns, gloves, and head coverings.  In light of that, does it seem okay for an employer to direct an employee with no training, barrier controls, or personal protective equipment (PPE) of any type to simply grab a clipboard, an employee questionnaire, a thermometer, and begin screening their coworkers for COVID-19 symptoms?  Of course not.

According to OSHA, “protection of screening and testing workers should incorporate standard and appropriate transmission-based precautions and should follow the hierarchy of controls, including appropriate engineering and administrative controls, safe work practices, and PPE.”  In its guidance, OSHA then punts to the CDC, recommending that employers review the CDC’s information on how to protect employees who conduct screening.

According to the CDC, examples of controls to protect employees who conduct COVID-19 screening include:

  • Reliance on Social Distancing:  Ask employees to take their own temperature either before coming to the workplace or upon arrival at the workplace.  Upon their arrival, stand at least 6 feet away from the employee and:
    • Ask the employee to confirm that their temperature is less than 100.4o F and confirm that they are not experiencing any symptoms of COVID-19.
    • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue.
    • Screening staff do not need to wear personal protective equipment (PPE) if they can maintain a distance of 6 feet.
  • Reliance on Barrier/Partition Controls:  During screening, the screener stands behind a physical barrier, such as a glass or plastic window or partition, that can protect the screener’s face and mucous membranes from respiratory droplets that may be produced when an employee sneezes, coughs, or talks.  Upon arrival, the screener should wash hands with soap and water for at least 20 seconds or, if soap and water are not available, use hand sanitizer with at least 60% alcohol.  Then:
    • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue, and confirm that the employee is not experiencing any symptoms of COVID-19.
    • Conduct temperature screening using this protocol:
      • Put on disposable gloves.
      • Check the employee’s temperature, reaching around the partition or through the window.  Make sure the screener’s face stays behind the barrier at all times during the screening.
      • If performing a temperature check on multiple individuals, the screener should use a clean pair of gloves for each employee and thoroughly clean the thermometer in between each check.  If disposable or non-contact infrared thermometers are used and the screener does not have physical contact with the employee being screened, then gloves do not need to be changed before the next check.  If non-contact thermometers are used, they should be cleaned and disinfected according to manufacturer’s instructions.
    • Remove and discard PPE (gloves), and wash hands with soap and water for at least 20 seconds.  If soap and water are not available, use hand sanitizer with at least 60% alcohol.

If social distance or barrier controls cannot be implemented during screening, PPE can be used if the screener must be within 6 feet of an employee during screening.  The CDC notes, however, that reliance upon PPE alone is a less effective control and more difficult to implement given PPE shortages and training requirements.

If using only PPE to protect the screener (and assuming the screener must be within 6 feet of the person being screened), then the CDC recommends the following:

  • Reliance on Personal Protective Equipment (PPE) Only:  Upon arrival, the screener should wash their hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol, put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), and a single pair of disposable gloves.  A gown could be considered if extensive contact with an employee is anticipated.  Then:
    • Make a visual inspection of the employee for signs of illness, which could include flushed cheeks or fatigue, and confirm that the employee is not experiencing any symptoms of COVID-19.
    • Take the employee’s temperature.
      • If performing a temperature check on multiple individuals, the screener should use a clean pair of gloves for each employee and thoroughly clean the thermometer in between each check.  If disposable or non-contact infrared thermometers are used and the screener does not have physical contact with the employee being screened, then gloves do not need to be changed before the next check.  If non-contact thermometers are used, they should be cleaned and disinfected according to manufacturer’s instructions.
    • After each screening, remove and discard PPE and wash hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol.

Notably, the CDC’s recommendation for screeners using only PPE does not include the use of a “respirator”; rather, it recommends use of a face mask and full face shield.  Employers should be cautious in this regard, however, as OSHA recently stated in a COVID-19 guidance document that “N95 filtering facepiece respirators may be . . . necessary for workers managing a sick employee in the work environment if that employee has signs or symptoms of COVID-19.”  Unfortunately, OSHA does not define what “managing” a sick employee means.  And if respirator use is necessary, OSHA reminds employers that they must be used in the context of a comprehensive respiratory protection program that includes medical exams, fit testing, and training in accordance with OSHA’s Respiratory Protection standard (29 CFR § 1910.134).  For a discussion of face masks and respirators in the COVID-19 context, see What Employers Need to Know About Face Masks and Coverings on our Covid-19 Information Hub.

OSHA Job Hazard Analysis

OSHA-covered employers should also be aware that if employees may be exposed to a hazard requiring the use of PPE (such as a respirator, gloves, face shield, etc.) they must prepare a written job hazard assessment which identifies the hazard and the methods to eliminate or reduce employee exposure to the hazard, including any necessary PPE.

OSHA’s General Industry regulations (29 CFR § 1910.132) require, in pertinent part, that:

“The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE).

The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the dates(s) of the hazard assessment; and which identifies the document as a certification of hazard assessment.”

OSHA has similar mandates for the construction and longshoring industries.  An employer’s knowing failure to complete such a mandated job hazard assessment could result in a penalty of up to $134,937.

ADA and OSHA Recordkeeping Concerns

Employers should already know that any employee health screening – COVID-19-related or not – should consider ways to maintain confidentiality as required by the Americans with Disabilities Act (ADA).  That information must not be shared with anyone other than as specifically allowed by the ADA (i.e., in limited circumstances, shared with supervisors, managers, first aid and safety personnel, and government officials investigating compliance with the ADA).

But that is not the only recordkeeping concern.  OSHA’s “Access to Employee Exposure and Medical Records” standard (29 CFR § 1910.1020) requires that employee “medical records” be maintained throughout an individual’s employment and for 30 years thereafter.  According to a recent OSHA COVID-19 publication titled Guidance on Returning to Work:

“If an employer implements health screening or temperature checks and chooses to create records of this information, those records might qualify as medical records under the Access to Employee Exposure and Medical Records standard (29 CFR § 1910.1020).  The employer would then be required to retain these records for the duration of each worker’s employment plus 30 years and follow confidentiality requirements.”

OSHA goes on to state that employers need not make a record of temperatures when they screen workers, but instead may “acknowledge a temperature reading in real-time.”  In addition, OSHA notes that health screening and temperature records may not qualify as “medical records” unless they are made or maintained by a physician, nurse, or other health care personnel, or by a “technician.”  In light of that fairly-broad and ill-defined group, prudent OSHA-covered employers should not create a record of an employee’s temperature or responses to health screening unless they are prepared to keep those records throughout employment and for 30 years thereafter.

Conclusion

Some employers seek employee COVID-19 symptom screening, while others have it thrust upon them by state or local law.  In either event, in the absence of state or local mandates, employers will be well-served to follow the guidance documents issued by the EEOC, OSHA, and the CDC and discussed in this article.  Those agencies have helped identify both “tips and traps” for employers.

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