The Occupational Safety Health Administration provided these questions and answers to returning to work during the pandemic:
Can employers conduct work site SARS-CoV-2 testing?
Yes. Employers have the right (and, some would say, the duty) to implement methods that reduce infection risks to the workers’ safety and health. Testing for SARS-CoV-2 is such an approved method. OSHA regulations and the OSHA Act do not forbit COVID-19 tests – if the testing isn’t retaliatory and is applied in a transparent manner for all workers. Employers (and employees) do need to proceed cautiously because there are limitations on the capabilities of the current tests being used. To be more precise, employers and employees should understand that SARS-CoV-2 is the virus that causes COVID-19.
A negative SARS-CoV-2 test may still not be determinative of whether a worker has or doesn’t have the disease. Employers shouldn’t automatically assume that a negative COVID-19 test doesn’t create a hazard.
In addition to testing; employers should continue with other infection safety protocols including:
- Good hygiene practices
- Social distancing
- Workplace controls and flexibilities
- Employee training as discussed in the OSHA guidelines – to reduce the risk of the spread of the disease – “including by asymptomatic and pre-symptomatic individuals.”
Can employers conduct work site temperature checks or other health screening?
Yes. As discussed above, neither the OSHA Act nor OSHA standards prohibit properly conducted testing. Employers can consider all relevant safety strategies including regular daily in-person or virtual health checks – such as looking for symptoms, questioning workers, self-checks, self-questionnaires – AND temperature testing.
The testing and screenings should be done to comply with the Americans with Disabilities Act requirements for confidentiality. Temperature checks are a useful screening tool because people who have the deadly virus can spread the disease – even if they don’t have symptoms or signs of the infection. In general, temperature screening methods work better “when conducted at home by individual workers, with employers’ temperature screening plans relying on workers’ self-monitoring and staying home if they have a fever or other signs or symptoms of illness, rather than employers directly measuring temperatures after workers arrive at the work site.”
Employers should also consider implementing screenings with sick leave policies – to encourage sick workers to stay home instead of coming to work where they could spread the disease.
As with testing for the virus, temperature tests are not completely reliable – they’re just an indicator. Employers and coworkers should not assume that just because an employee doesn’t have an abnormal temperature, a fever, or other signs of the infection – that they don’t have SARS-CoV-2, the virus that causes COVID-19.
Again, OSHA recommends that employers implement other tests including social distancing, workplace controls and flexibilities, hygiene, and employee training – as reviewed in the OSHA guidelines.
What OSHA requirements must an employer follow when conducting health screening, temperature checking, or COVID-19 testing?
Employers who do implement testing procedures, temperature controls, and other screening tests – and create records of this data – need to understand that the records “might qualify as medical records under the Access to Employee Exposure and Medical Records standard (29 CFR 1910.1020).”
Employers who are required to comply with these regulations must keep these records – for the employer’s active work period – plus an additional 30 years after they leave the company – and follow the confidentiality requirements.
Employers don’t need to make a record of temperatures when they screen records though. Instead, they “may acknowledge a temperature reading in real-time.” Also, employers and employees should understand that “temperature records do not qualify as medical records under the Access to Employee Exposure and Medical Records standard unless they are made or maintained by a physician, nurse, or other health care personnel, or technician. “
It’s also critical that the people who administer any tests (COVID-19 tests, in-person temperature checks, or other screening tests) – must also be kept safe from exposure to the disease – including from workers and anyone who may be asymptomatic or pre-symptomatic.
The protections for those people administering the tests and screenings – “should follow the hierarchy of controls, including appropriate engineering and administrative controls, safe work practices, and PPE.” The CDC’s General Business Frequently Asked Questions can provide more information on this topic. Generally, any testing that involves drawing blood will fall “under the scope of the Bloodborne Pathogens standard (29 CFR 1910.1030).”
Is there guidance on how to address the various health screening and medical issues associated with COVID-19 to avoid violating other labor, disability, and employment laws?
Employers should understand and comply with the guidance standards set forth by the U.S. Equal Employment Opportunity Commission (EEOC), the ADA, the Rehabilitation Act, and Other EEO Laws. Additional information about labor, disability, and employment laws is available on the Summary of the Major Laws of the Department of Labor webpage.
When can employees who have had COVID-19, or illness consistent with COVID-19, return to work?
In general, employers should review the CDC guidelines for information about ending the isolation for people who have COVID-19 – who are not in healthcare settings. They should also review any state guidelines on this topic.
How does an employer know if employees need personal protective equipment (PPE)?
“Employers must conduct a hazard assessment in accordance with OSHA’s PPE standard (29 CFR 1910.132), if applicable, to determine the PPE requirements for their unique work site.”
If an employer is required to comply with these requirements, the employer needs to determine what PPE is required to protect their employees – after consideration of engineering controls, safe work practices (social distancing and cloth face coverings). PPE includes gloves, surgical masks, and face shields.
Employers should review how to reduce interactions among coworkers and with customers/visitors – to reduce the need for PPE – in part, because there are shortages of PPE.
If PPE is required, employers should also consider delaying those work tasks or consider alternative safer ways to conduct those tasks. IF PPE is required but employers can’t “identify alternative means to accomplish business needs safely, the work tasks must be discontinued.”
Employers should also “consider CDC guidance for conserving and extending filtering facepiece respirator supplies in nonhealthcare sectors.” While cloth face coverings are not PPE, they are encouraged for everyone involved.
At the California Law Offices of Stephen A. Danz and Associates, we’re here to answer question you have about your employee rights during the pandemic. We’re ready to file legal claims if your rights have been violated. To learn if you have any type of employee rights claim, phone us at 877-789-9707 or use our online contact form to make an appointment. Se habla espanol.