As more states and localities begin to open up commercial activities, federal agencies and state and local governments are encouraging and, in some places, requiring employers to develop and implement a comprehensive screening and monitoring strategy for employees aimed at preventing the introduction of COVID-19 into the workplace.
Temperature and Other Medical Screening of COVID-19 Symptoms
Of course, the first step in prevention of COVID-19 in the workplace lies with the employee. Employees should be required to self-screen, and, if they feel ill and display any of the COVID-19 symptoms, they must stay home. But, in addition to these self-screens taken by employees before even attempting to report to the workplace, the Virginia Department of Health’s interim guidance and the current re-opening Executive Order in Virginia recommend that employers check worker temperatures and conduct symptom screens before entry into the workplace.
In North Carolina, the Executive Order does not mandate temperature checks but does require retail employers to ask their employees as they report for work, whether (1) you had close contact (within 6 feet for at least 10 minutes) in the last 14 days with someone diagnosed with COVID-19 or has any health department been in contact with you and advised you to quarantine and (2) since you last worked, have you had any [COVID-19] symptoms, referenced here. In addition, certain counties in North Carolina have screening requirements. All North Carolina employers should review the requirements of their localities as they prepare to welcome their employees back to work.
South Carolina recommends that restaurants check the temperatures of their employees and conduct symptom screens, referenced here. The Maryland state government recommends (but does not require) that employers implement daily screening for workers and other personnel which includes CDC or MDH recommended health questions, referenced here. The Government of the District of Columbia does not require temperature screenings for employers but does require that retail food sellers (including grocery stores, supermarkets, convenience stores, food halls and food banks) check employees for symptoms before their shifts and exclude employees with cold- or flu-like symptoms, referenced here.
The Equal Employment Opportunity Commission (EEOC) has stated in recent guidance that, although it constitutes a medical inquiry under the Americans with Disabilities Act, employers are permitted to test and screen workers in order to determine possible exposure to COVID-19, provided the employer does so in accordance with applicable guidance from the government. Per guidance jointly posted by the Centers for Disease Control (CDC) and the Occupational Safety and Health Administration (OSHA), employers who choose to screen workers for COVID-19 symptoms and possible exposure before starting their work day should:
Of course, employees should not enter the workplace if they have a fever of 100.4°F or greater (or report feelings of feverishness), or if screening results indicate that the worker is suspected of having COVID-19 based on symptoms, or if the employee reports direct exposure to another person who has been diagnosed with COVID-19. Instead, employers should encourage self-isolation under the management of a healthcare provider. Return to work should be consistent with current CDC recommendations.
The CDC/OSHA guidance also urges employers not to overlook the safety and health of the screeners. To protect them from exposure to potentially infectious workers entering the facility, employers should:
OSHA Reporting of COVID-19 Cases
Effective May 26, all employers must record a COVID-19 incident if:
The case is a confirmed case of COVID-19, as defined by the CDC;
The case is work-related as defined by 29 CFR § 1904.5; and
OSHA recognizes that, given the nature of the virus, in many instances it is difficult to determine whether the illness was work-related, especially when the employee has experienced potential exposure both at and outside of work. Recording a COVID-19 illness does not, of itself, mean that the employer has violated any OSHA standard.
OSHA has advised that it will enforce the recordkeeping requirements of 29 CFR § 1904 for employee COVID-19 illnesses for all employers according to its guidelines. Each recordkeeping violation may be assessed civil penalties of up to $13,494. Pursuant to existing federal regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; those employers need only report work-related COVID-19 illnesses that result in a fatality or an employee's in-patient hospitalization, amputation, or loss of an eye.
OSHA has stated that, in determining whether an employer has complied with this obligation and has made a reasonable determination that the COVID-19 case was work-related, Certified Safety and Health Officers (CSHO) should apply the following considerations:
OSHA then states that if, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure to COVID-19 played a causal role with respect to the particular case of COVID-19, the employer does not need to record that COVID-19 illness.
In sum, either complying with government directives or simply trying to provide the safest workplace/customer space practicable exposes a business to a host of potential liabilities. Implementing a comprehensive screening and monitoring strategy demands thoughtful design and execution.
Please note: This alert contains general, condensed summaries of actual legal matters, statutes and opinions for information purposes. It is not meant to be and should not be construed as legal advice. Readers with particular needs on specific issues should retain the services of competent counsel.
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