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Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel

Perhaps to dream but whether full business revival is prompt or eventual, the U.S. Equal Employment Opportunity Commission (EEOC) today issued expanded pandemic-related guidelines for screening returning employees.

As covered in Infection Protection, What Employers Can Ask in a Pandemic (March 25), the EEOC has loosened many of its normal-time Americans with Disabilities Act (ADA) restrictions against employer intrusions into worker illness symptoms and medical care.

Symptomatic Workers Stay Home: Thus, by the EEOC’s “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” management for example may send a worker home if displaying or disclosing any COVID 19-related symptoms (e.g., fever, chills, cough, shortness of breath, or sore throat). It is irrelevant that the employee may have no more than an allergy or common cold.

Employers may also apply this principle for people returning. Yet, it’s one thing to simplistically request  “symptom free, please” (definitely not a best practice) and quite another to easily find consensus among the myriad federal agencies when a COVID-19 infected or suspected person is considered no longer contagious.  However, Los Angeles County Department of Public Health (LACDPH) “Home Isolation Instructions” offer:    

“Stay home until at least 7 days have passed after your symptoms first appeared AND at least 3 days after you have recovered. Recovery means that your fever is gone for 72 hours without the use of fever-reducing medications and your respiratory symptoms (e.g. cough, shortness of breath) have improved.”

Management May Require COVID 19 Testing to Enter Workplace: The EEOC now advises that employers may administer a mandatory “test to detect the presence of the COVID-19 virus” to employees “before permitting them to enter the workplace.” While across-the-boards medical testing is only occasionally justified in normal times, the agency is greenlighting such pandemic assessment as a workplace health and safety necessity. The EEOC leaves it to business management to “ensure that the tests are accurate and reliable” and suggests consulting the Food and Drug Administration (FDA) for guidance in turn. A search of the FDA’s online COVID-19 FAQs shows that agency is scrambling:

“Q: Is there a test for COVID-19?

“[FDA Answer]: Yes, there are tests for COVID-19. Though there is currently no FDA-approved or cleared test for COVID-19, the FDA has issued several Emergency Use Authorizations (EUAs). During public health emergencies declared under [law], the FDA is able to issue EUAs when certain criteria are met that allows for the use and distribution of potentially life-saving medical products to diagnose, treat, or prevent the disease, which can include diagnostic tests.”

As with previous scourges such as Ebola (2014-present), testing will become more assured and FDA-approved as more is known about COVID-19. For the time being, management best practices should include adequate research to confirm that any test used is FDA-recognized.  Employers must maintain all test results confidential, included in the separate health information files for respective workers.

Employers Permitted to Take Employee Temperatures Daily: The EEOC has also relaxed its usual-times prohibition of blanket temperature taking as a medical examination in violation of worker privacy. Until further notice however, the “gloves are on” for reliable temperature taking of every employee on arrival to the workplace, with individuals sent home if displaying any fever and with all information preserved as confidential,.

Employers Should Develop an Overall Screening Plan:  The EEOC advises that employers may continue the above extraordinary measures as long as the pandemic poses a “direct threat” as “based on the best available objective medical evidence.” As the backside of the COVID-19 curve becomes more evident, public health authorities are likely to take a gradual, trial-period approach to reversing their currently strict “stay home” directives. Management best practices should include transitional policies consistent with these developments, including the EEOC’s return to its tighter pre-pandemic restrictions.

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Our firm is currently helping many employer clients to develop critical policies and procedures that enable continued or resumed operations while protecting worker health and safety in this extraordinary time. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

April 23, 2020