05.21.2020 Return to Workplace Guidance: Temperature and Other Medical Screening of Workers for COVID-19 Symptoms and OSHA Reporting of COVID-19 Cases
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:
- Develop the program in consultation with state and local health officials and occupational medicine professionals.
- Apply the program to all employees. (Do not select only older employees or employees with known medical conditions for screening, for example, to minimize potential claims of discrimination.)
- Screen before entry into the workplace. (Be careful to manage the process to avoid unintended wait time that may be compensable time pursuant to the Portal to Portal amendments to the Fair Labor Standards Act.)
- Provide verbal screening in appropriate language(s) that the worker will understand to determine whether workers have had symptoms including a cough, shortness of breath or difficulty breathing, fever, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell in the past 24 hours.
- Check temperatures of workers at the start of each shift to identify anyone with a fever of 100.4°F or greater (or reported feelings of feverishness).
- Ensure that screeners are trained to use temperature monitors and that monitors are accurate under conditions of use (such as cold temperatures).
- Evaluate the burdens and benefits of recording workers’ temperatures or asking them to complete written questionnaires. These records must be retained for the duration of the workers’ employment plus 30 years. See 29 CFR § 1910.1020 (OSHA’s Access to Employee Exposure and Medical Records Standard). In addition, both the Americans with Disabilities Act and the Family Medical Leave Act require that the records be treated confidentially and maintained separately from personnel files.
- Ask whether the employee has been directly exposed to someone diagnosed with COVID-19.
- Determine whether the employee has traveled to any known CDC hotspots since the last screening or within the last two weeks.
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:
- Implement engineering controls, such as physical barriers or dividers or rope and stanchion systems, to maintain at least six feet of distance between screeners and workers being screened.
If screeners need to be within six feet of workers, provide them with appropriate personal protective equipment (PPE) based on the repeated close contact that the screeners have with other workers.
- Such PPE may include gloves, a gown, a face shield and, at a minimum, a face mask.
- N95 filtering facepiece respirators (or equipment that is more protective) may be appropriate for workers performing screening duties and necessary for workers managing a sick employee in the work environment if that employee has signs or symptoms of COVID-19. If respirators are needed, they must be used in the context of a comprehensive respiratory protection program that includes medical exams, fit testing, and training in accordance with 29 CFR § 1910.134 (OSHA’s Respiratory Protection Standard).
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
- The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.
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:
The reasonableness of the employer's investigation into work-relatedness.
Employers, especially small employers, should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area. It is sufficient in most circumstances for the employer, when it learns of an employee's COVID-19 illness, (1) to ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and outside-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential exposure to the virus. The review in (3) should be informed by any other instances of workers in that environment contracting COVID-19 illness.
The evidence available to the employer.
The evidence that a COVID-19 illness was work-related should be considered based on the information reasonably available to the employer at the time it made its work-relatedness determination. If the employer later learns more information related to an employee's COVID-19 illness, then that information should be taken into account in determining whether an employer made a reasonable work-relatedness determination.
The evidence that a COVID-19 illness was contracted at work.
CSHOs should take into account all reasonably available evidence, in the manner described above, to determine whether an employer has complied with its recording obligation. This cannot be reduced to a ready formula, but certain types of evidence may weigh in favor of or against work-relatedness. For instance:
- COVID-19 illnesses likely are work-related when several cases develop among workers who work closely together, and there is no alternative explanation.
- An employee's COVID-19 illness likely is work-related if it is contracted shortly after lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
- An employee's COVID-19 illness likely is work-related if his job duties include having frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.
- An employee's COVID-19 illness likely is not work-related if she is the only worker to contract COVID-19 in her vicinity, and her job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
- An employee's COVID-19 illness likely is not work-related if, outside the workplace, he closely and frequently associates with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker, and (3) exposes the employee during the period in which the individual likely is infectious.
- CSHOs should give due weight to any evidence of causation, pertaining to the employee illness at issue, provided by medical providers, public health authorities or the employee herself.
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.