Todd Wulffson authored the article “COVID-19: To Test or Not To Test” for HR.com on August 20, 2020.
Excerpt:
Most businesses across the nation are either in the process or reopening or soon will be. In addition to the myriad of logistical issues confronting employers, in the age of COVID-19, they need to decide whether to screen or to test returning employees for the virus. There is a great deal of information in the news and on the internet about how to perform such testing, which can range from self-administered temperature checks, to blood tests for COVID-19 antibodies.
Unfortunately, the amount of information currently available does not make any testing decision easier; and if they are not careful, employers trying “to do the right thing” may wind up with a nasty lawsuit for their efforts.
Regardless of whether a business is legally required to perform testing on employees entering its facility (some jurisdictions have mandated it for certain professions), or the company simply decides on its own to do so, any testing needs to be done properly, cautiously and applied to all employees equally. Employers should ensure that certain employees (e.g., older, Asian-American1 or disabled employees) are not being singled out, and are not required to undergo additional testing or other safety precautions.
As far as permissible types of testing, the Equal Employment Opportunity Commission (EEOC) has authorized the touchless taking of employees’ temperatures. This can be self-administered by employees at home, but it is more reliable to do so at work. The generally-accepted COVID-19 threshold for a fever is 100.4 degrees, and it is preferable for the person doing the forehead scans to have a modicum of training. Keep in mind that hourly employees must be paid for the time spent waiting in line to be screened.
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Todd Wulffson
Todd R. Wulffson has focused his practice on counseling and defending businesses in labor and employment matters for over 30 years. In addition to private practice, from 2006-2010, Wulffson served as General Counsel and SVP of…
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