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COMPLIANCE GUIDANCE

How to create a legally sound COVID-19 medical screening policy

Like so many other law offices during the coronavirus pandemic, you may be considering medically screening your employees each day before letting them into the workplace. While screening is highly problematic in normal times, regulators have grudgingly acknowledged that it may be a justified health and safety measure during the pandemic. The operative phrase is “may be,” which means that limits still apply. You need to recognize and ensure keep your facility in compliance with those limits. Here’s how.

Three Ways COVID-19 Screening Can Get Your Firm into Legal Hot Water

Medically screening  personnel can expose you to three kinds of liability.

Privacy Violations

Body temperature and information about an individual’s symptoms (or lack thereof) collected during the screening process is personal health information (PHI) protected by HIPAA and other privacy laws. Under the unique circumstances of the pandemic, the employer’s need to maintain social distancing and keep sick people out of the workplace temporarily trumps personal privacy rights. But the employer’s leeway goes only so far. Rule: You can only collect the minimum PHI necessary to maintain social distancing in the workplace. Example:

  • OK: Asking employees if they have COVID-19 symptoms;
  • Not OK: Asking employees about other medical conditions or what medications they use. 
  1. Discrimination

Medical exams raise a red flag under the Americans with Disabilities Act (ADA) and other discrimination laws because they may reveal an employee’s disabilities. Having—or merely being perceived as having—COVID-19 is considered a disability. So, using the positive results of COVID-19 screening to keep an employee from coming to work could make you liable for disability discrimination. People who test positive may also belong to groups protected by other discrimination laws like the Age Discrimination in Employment Act (ADEA). The good news is that EEOC has recognized that screening is a valid health and safety measure during the pandemic, as long as it’s implemented fairly, consistently and without regard to age, race, religion, sex, etc.

  1. OSHA Violations

The other legal pitfall of screening is temperature-taking, which involves the risk of infection to both test takers and persons being tested. Consequently, you need to ensure your screening methods and equipment meet OSHA requirements.

The 10 Things to Include in Your COVID-19 Screening Policy

The key to sidestepping these legal risks is to implement a policy that clearly explains your screening methods and includes safeguards to ensure it complies with privacy, discrimination and OSHA requirements. Like our Model, your COVID-19 screening policy should include 10 provisions.

  1. Policy Statement

Explain that screening is essential to prevent spread of COVID-19 and that nobody will be allowed to enter the work site or facility unless they undergo and pass screening (Policy, Sec. 1).

  1. Policy Purpose

State that the purpose of the Policy is to ensure that screening is done fairly, effectively, safely, consistently and in a manner that complies with current CDC and other public health guidelines (Policy, Sec. 2).

  1. Who Must Undergo Screening

Under current guidelines, where screening is used, it must apply to all would-be entrants and not just employees. To avoid potential discrimination claims, make it clear that there are no exemptions and that all persons must undergo screening each time they seek entry. This will provide employees advance notice and encourage them to self-monitor before coming to work (Policy, Sec. 3).

  1. Temperature Check Criteria

Next, explain the actual screening procedures, starting with temperature checks. To ensure consistency and eliminate discretion that can lead to discrimination claims, set a specific fever threshold, i.e., precise body temperature (or temperature range) that entrants must be below to get in. Our Policy uses the CDC recommended 100.4°F but you may want to ask a medical professional for help in deciding where to set your own fever threshold (Policy, Sec. 4.1).

  1. Other COVID-19 Risk Factors

Body temperature alone isn’t enough to determine if a person should be admitted. That’s because a person can have COVID-19 without having a fever. Accordingly, public health guidelines recommend asking about the other COVID-19 risk factors, specifically the following YES/NO questions:

  • Are you experiencing any of the following symptoms: cough, fever, difficulty breathing or sudden loss of smell?
  • Have you been outside the US within the past two weeks?
  • Have you had close contact, i.e., within six feet of a person confirmed as having COVID-19 within the past two weeks?

(Policy, Sec. 4.2)

  1. Criteria for Entry

There must be black-and-white criteria for using screening results to determine who does and doesn’t get in. Under current guidelines, nobody should be admitted if they’re at or above the fever threshold. Persons with normal body temperature should also be denied entry if they answer YES to any of the above risk factor questions.

  • Wear a face mask at all times;
  • Follow  social distancing protocols and requirements; and
  • Self-monitor while in the workplace in accordance with the policies, procedures and protocols.

(Policy, Sec. 4.3)

  1. Documentation of Screening Results

Require screening personnel to complete a form or otherwise document the results of each check. Attach a copy of a blank form to your Policy (Policy, Sec. 4.4).

  1. HIPAA Privacy Protections

Include the following privacy protections:

  • A promise not to request any PHI beyond body temperature and questions about symptoms;
  • Assurance that screening records of employees who don’t pass screening will be kept private and secure in a separate file; and
  • Assurance that you won’t retain the screening records of non-employees and individuals who pass screening at all.

(Policy, Sec. 5)

  1. Health & Safety Measures

Include safeguards to ensure the health and safety of participants in the screening process, especially temperature taking, starting with a hazard assessment, followed by the implementation of measures to eliminate or minimize the hazards identified.

(Policy, Sec. 6)

  1. Policy Duration

Last but not least, indicate that the Policy is only a temporary measure for the pandemic that will end as soon as the threat subsides and public health officials send the all-clear on social distancing. Also be clear that you have the right to amend the Policy to keep up with changes and ensure compliance with the latest version of the public health guidelines (Policy, Sec. 7).

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