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As the nationwide surge in COVID-19 cases slows, states are increasingly considering easing (or outright lifting) lockdown restrictions and pursuing reopening. In fact, at the time of writing, 23 out of 50 states have reopened, with another 8 in the process of doing so. In response, businesses are evaluating how best to bring employees back to physical work environments while protecting employees’ safety and the organization’s liability. Expectedly, top-of-mind for many is whether to implement some form of COVID-19 screening in the workplace; antibody, temperature and viral tests are all viable options, though temperature tests are the preferred workplace testing method due to their non-invasive nature and instantaneous results. Read on to learn more about the intricacies of COVID-19 screening in the workplace and determine which screening solution best suits your organization.

Antibody Tests

When conducting antibody (also called serologic) tests, an individual’s blood sample is used to determine whether the individual has developed antibodies against COVID-19. The presence of antibodies not only suggests that the individual has overcome a COVID-19 infection in the past, but also that the individual may be resistant to future infection and thereby incapable of infecting others, at least for a period of time. As such, employees that test positive for COVID-19 antibodies may pose less of a risk to others in the workplace.

Temperature Tests

When conducting temperature tests, a thermometer is used to measure an individual’s body temperature, which can be indicative of a fever and potential COVID-19 infection. Employers may consider asking employees to submit to periodic temperature tests before entering the workplace.

Viral Tests

When conducting viral (also called diagnostic) tests, a swab is used to sample an individual’s nasal or throat secretions, which can carry certain proteins and genetic materials belonging to the virus. Employers may consider asking employees to obtain a negative viral test result before entering the workplace.

Risks Associated with Implementing COVID-19 Screening Protocols in the Workplace

In addition to the inherent advantages and disadvantages associated with each screening method, there are a number of internal and external risks to evaluate when determining whether or how to screen employees for COVID-19:

1. Observance of health guidelines may vary among employees

Employers are generally unaware of how employees spend leisure time, making it more difficult to ensure that employees consistently practice any applicable health and safety guidelines to limit COVID-19’s spread. First and foremost, employers should encourage all employees to abide by the Center for Disease Control and Prevention (CDC) guidelines for protecting yourself and others from COVID-19. Employees should practice a number of self-screening measures, including daily symptom and temperature checks. To assist employees, employers should consider subsidizing employees’ purchases or assuming financial responsibility for the procurement of thermometers, COVID-19 test kits and other items used to protect against COVID-19 in the workplace.

2. EEOC approval of mandatory employee testing is temporary

Prior to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) expressly forbade employers from subjecting employees to mandatory testing, except when required for the establishment and maintenance of employer-sponsored group health plans. The EEOC has since temporarily permitted employers to require temperature and viral tests of employees. So long as the presence of an employee diagnosed with COVID-19 poses a ‘direct threat’ to the health and safety of other employees, employers may consider implementing one of the two above forms of mandatory workplace screening for COVID-19. Note that the EEOC’s stance does not permit mandatory antibody tests of employees, because the test cannot detect active infections and thus cannot detect whether an employee poses a direct threat to others. Because the EEOC’s allowance is temporary, employers will need to stay informed of the organization’s stance on mandatory employee testing and periodically reevaluate any existing COVID-19 screening protocols.

3. Test performance metrics are varied

EEOC guidance on testing for COVID-19 in the workplace states that tests must be deemed “accurate” and “reliable” by the Food and Drug Administration (FDA) and CDC, primarily because test performance varies depending on the type of test conducted. For instance, viral tests that use nasal swabs are widely recognized as being more accurate and reliable than viral tests that use throat swabs or saliva samples. Employers should compare accuracy and reliability metrics across test types to help determine which type of screening method and test to implement. Although no test is 100% accurate, the FDA states that viral tests are highly accurate and generally do not need to be repeated, whereas antibody tests occasionally need to be repeated to obtain accurate results.

4. Temperature tests have shortcomings

Due to the large share of asymptomatic or pre-symptomatic individuals that may not be experiencing fever or other COVID-19 symptoms, temperature tests are incapable of detecting active infections. As such, temperature screening protocols are not entirely effective in keeping COVID-19 from spreading throughout the workplace. Employers that opt to implement a screening protocol centered on temperature testing should supplement it with other risk-minimization practices.

5. Employers must ensure lawful health screening administration

COVID-19 screening can be conducted in a number of ways, each with its own legal implications, which vary by state. However, in the event that employees are required to conduct their own temperature tests at home before entering the workplace, the employer is generally required to reimburse employees for the equipment needed (e.g. thermometers). Additionally, employers must be sure to properly train and compensate any employees involved in conducting required screening processes, as well as properly compensate employees for their time spent learning about, preparing for and participating in the screening protocol.

6. Employers must comply with state data breach laws

Employers should be mindful of the amount of sensitive information collected from employees during the screening process; collecting large amounts of sensitive information from employees intensifies the employer’s disclosure obligations, posing risks to privacy and security compliance. For instance, some state data breach laws mandate that employers themselves protect the ‘personally identifiable medical information’ of employees from unauthorized access or breach. As such, employers in these states will need to take additional, documented steps to secure any records of employees’ first and last names in combination with their medical results (e.g. temperature test results, COVID-19 test results, etc.).

7. Employers must satisfy Federal Trade Commission (FTC) Act and Americans with Disabilities Act (ADA) obligations

The FTC Act ensures individuals’ privacy rights and consumer protections. Under this statute, employers are required to adhere to a certain level of transparency when informing employees of the personal information that will be collected during COVID-19 screening protocols, in addition to how the data will be used and stored. In most cases, employees are legally permitted to request access to or the deletion of any personal information collected during COVID-19 screening protocols. Additionally, the ADA subjects employers to strict guidelines surrounding the information the employer is permitted to share with others in the event that an employee tests positive for COVID-19. Employers should be aware of their obligations in these instances and should be prepared to handle any challenges they pose to the overall success of the screening protocol.

The privacy and security risks posed to employers during the implementation of COVID-19 screening protocols can be overwhelming, to say the least. In light of these potential risks, employers should strongly consider seeking outside help from a third-party healthcare provider, contractor or consultant that may be more knowledgeable about the intricacies of managing COVID-19 in the workplace. As always, employers should supplement screening protocols with other risk-minimization practices, such as frequent handwashing and social distancing, to best protect the organization’s and employees’ interests. 

 

By: Ayanna Leaphart

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