A client recently asked me about using a new scanner on its employees that reportedly can detect the presence of the coronavirus. If this device works, it certainly could be a major asset to businesses trying to resume normal operations. However, the question remains, when (and how) could a business use a “coronavirus scanner” for employees? For that matter, what about testing employees with other instant-tests that may become available to the public?
To begin with, using a coronavirus scanner or other instant tests should be permissible by law under the same logic as employee temperature scans, which the EEOC has already approved (the Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.) Nevertheless, there are a few things to consider before a business starts screening employees:
- To perform screenings, the business should avoid having employees line up together where they can see each other. Rather, it would be better to have the screens done one at a time in a private room or tent outside the facility. Naturally, it would be best to do the screening before the employees enter the facility, and if not, then the employees could be required to report directly to the screening area without going into any other areas of the premises.
- For the employee performing the screening, the business ideally would require that he/she use personal protective equipment (at least hand sanitizer, mask and gloves). The screener might begin by screening themselves to make sure they are not exposing others to coronavirus during the process.
- For record keeping, ideally the business would have a system 1) to confirm that every employee on site in a given day was screened, and 2) a way to document positive tests, while 3) avoiding creating an abundance of unnecessary confidential medical records for every screen the business performs.
One approach could be to have the screener keep a list of the employees working on a given day and then simply place a check next to their names when the employees are screened without indicating anything about a positive or negative result. This record could be used to make sure employees are being screened, would not contain any substantive medical information, and therefore would not require any special confidential treatment for record keeping.
The business could then also have a separate form (or simply create a memo) documenting an employee testing positive for coronavirus in the screening. This record would be placed in the employee’s separate, confidential medical file (under the ADA, employee medical information is required to be kept separate from the employee’s standard personnel file.)
To the extent the screening device/test keeps track of who is screened and other data, the business could record the screening device/test data that accompanies a positive test in the employee confidential record/memo. This practice should alleviate concerns the business may have about deleting/destroying the screening device/test data, since the screening device/test data would be duplicative. Indeed, the best practice arguably would be to keep the information in the screening device/test only long enough to create the records described above, and then to immediately delete/destroy the data. Under this approach, the screening device/test itself would no longer contain any confidential information requiring protection.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.