May 2020 Screening Compliance Update

Federal Developments

EEOC Updates Guidance to Permit Employer-Mandated COVID-19 Testing (U.S.)
As the COVID-19 public health emergency begins to (hopefully) progress down the curve and employers contemplate reopening and returning employees to the workplace, many employers are considering what measures they can implement to ensure that returning employees are not infected with the SARS-CoV-2 virus. In March 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance confirming that in light of the pandemic, employers not only can ask employees about virus-related symptoms, but also can require that employees submit to temperature testing. However, as we all have learned, not all COVID-19 infected persons have a fever.

As molecular and serological testing becomes more available, and in particular, tests that provide rapid results, employers have begun to assess whether to require employees to submit actual COVID-19 testing as a condition of entering the workplace, rather than rely on self-reporting or unreliable temperature tests. Under typical circumstances, such a requirement would present substantial concerns under the Americans with Disabilities Act (ADA), which generally forbids employer-mandated medical testing unless that testing is job-related and consistent with job necessity. However, on April 23, 2020, the EEOC updated its COVID-19 guidance to confirm that under the current circumstances presented by the pandemic, “employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus” “because an individual with the virus will pose a direct threat to the health of others.”

The guidance explains that employers that decide to require testing should ensure that the tests are accurate and reliable. It also emphasizes that employers should continue to require employees to adhere to infection control best practices, i.e., social distancing, frequent handwashing, etc.

Although the updated guidance provides a welcome signal that employer-required COVID-19 testing will not run afoul of the ADA, employers must be mindful that a decision to require testing implicates many other important considerations. For example, employers must ensure that any information obtained from testing is kept confidential. Employers also must consider whether time spent by employees taking tests is compensable time under the Fair Labor Standard Act and state wage payment laws. And employers must consider potential liabilities associated with possible false-positive and false-negative test results. Accordingly, employers should strongly consider consulting with counsel to discuss these and other issues prior to implementing a mandatory COVID-19 testing protocol.
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OSHA Issues Revised Guidance for Recording COVID-19 Cases
On Tuesday, May 19, 2020, the Occupational Safety and Health Administration (OSHA) issued new enforcement guidance regarding an employer’s obligation to record cases of COVID-19 on the OSHA injury and illness logs. The new guidance takes effect Tuesday, May 26, 2020, and will supersede OSHA’s previous guidance that was issued on April 10, 2020.

Under the new guidance, the key question remains whether a case of COVID-19 is “work-related.” As with the previous guidance, OSHA continues to acknowledge that it will be difficult to establish that a particular COVID-19 case is work-related “especially when an employee has experienced potential exposure both in and out of the workplace”—but the new guidance does place additional obligations on most non-healthcare employers to conduct this analysis and to make a reasonable determination.

OSHA’s COVID-19 Recordability Test
OSHA’s recordkeeping rules apply to injuries or illnesses. As COVID-19 began to spread across the country, OSHA confirmed that COVID-19 can be a recordable illness if a worker is infected as a result of performing work-related duties. However, OSHA’s original guidance from April 2020 directed that most non-healthcare employers did not need to determine “work-relatedness” of COVID-19 cases—and therefore did not need to record them—unless the employer had “objective evidence” that the cases were work-related. Under the new guidance, OSHA affirms that COVID-19 may be a recordable illness, and now states that all employers—including non-healthcare employers—are responsible for conducting a reasonable analysis of COVID-19 cases and recording cases of COVID-19, if:

  1. The case is a confirmed case of COVID-19 (as opposed to an employee exhibiting symptoms but not diagnosed with the virus), as defined by the Centers for Disease Control and Prevention (CDC);1
  2. The case is “work-related”—e., an event or exposure in connection with the employee’s work either caused or contributed to the COVID-19 case; and
  3. The case involves one or more of the general recording criteria, including, among other things, death; days away from work; or restricted work or transfer to another job.

The New Guidance on Whether COVID-19 Cases are Work-Related
As noted, OSHA’s prior guidance (which remains in effect through May 26, 2020) created different paths for different types of employers regarding the recording of COVID-19 cases. The first framework was for healthcare employers, emergency response organizations, and correctional facilities. The second framework was for all other employers. Under the revised guidance, in determining whether employers have complied with their recordkeeping obligations, OSHA will consider the following:

The reasonableness of the employer’s investigation into work-relatedness.
Employers are not expected to undertake extensive medical inquiries, given privacy concerns and most employers’ lack of medical expertise. However, in most circumstances, employers should complete the following steps when they learn of a COVID-19 case:

  1. Ask the employee how they believe they contracted the illness;
  2. Discuss with the employee, while respecting privacy concerns, the activities both inside and outside of work that may have led to the illness, and
  3. Review the employee’s work environment for potential COVID-19 exposure.

The review of the work environment will primarily be focused on other instances of workers who contracted COVID-19, and the circumstances surrounding those other cases. An employer’s implementation and enforcement of steps to address the spread of COVID-19 in the workplace consistent with guidelines from the CDC and OSHA (including, for example, the use of face coverings, social distancing, and cleaning procedures) may also be a consideration in the employer’s analysis of work-relatedness.

The evidence available to the employer.
OSHA’s updated guidance recognizes that an employer cannot know everything about a particular employee’s exposure, and that a determination as to whether a COVID-19 case is work-related should be based on information reasonably available to the employer at the time it made the determination. If the employer later learns more information related to an employee’s COVID-19 illness, however, OSHA may use that information to evaluate whether the employer made a reasonable work-relatedness determination.

The evidence that a COVID-19 case was contracted at work.
OSHA specifically recognizes that the difficulty of determining whether a COVID-19 illness is work-related and acknowledges that there is no formula for determining work-relatedness. With this in mind, OSHA will look for certain types of evidence that weigh in favor or against work-relatedness. OSHA’s updated guidance provides that COVID-19 illnesses may be work-related when, for example:

  • Several cases develop among workers who work closely together and there is no alternative explanation.
  • It is contracted shortly after a lengthy, close exposure to a particular customer or coworker who has a confirmed case of COVID-19 and there is no alternative explanation.
  • The employee’s job duties include frequent, close exposure to the general public in a locality with ongoing community transmission and there is no alternative explanation.

On the other hand, OSHA provides that COVID-19 illnesses are likely NOT work-related when:

  • The employee is the only worker to contract COVID-19 in the vicinity and the worker’s job duties do not include having frequent contact with the general public, regardless of the rate of community spread.
  • The employee, outside the workplace, closely and frequently associated with someone (e.g., a family member, significant other, or close friend) who (1) has COVID-19; (2) is not a coworker; and (3) exposes the employee during the period in which the individual is likely infectious.

Further, OSHA will also give weight to evidence of causation from the employee, the employee’s medical providers, and the public health authorities where that information is available.

If, after making a reasonable inquiry under the factors outlined above, an employer cannot determine whether it is more likely than not that the COVID-19 case is work-related, then the employer does not need to record the illness.

The Bottom Line
OSHA’s new guidance creates a single framework for recording work-related cases of COVID-19 for all employers with recording obligations under OSHA’s recordkeeping rule, imposing greater obligations for the vast majority employers outside the healthcare, emergency response, and correctional facility context. The key for all employers will be to conduct a reasonable and objective evaluation of work-relatedness and to then make the appropriate determination.
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CDC and OSHA Issue COVID-19 Guidance for the Nursing Home Industry
During the COVID-19 pandemic, nursing homes and care facilities have instituted significant precautions and protocols to address employee and resident safety. The Centers for Disease Control and Prevention (CDC) and federal Occupational Safety and Health Administration (OSHA) have both recently published guidance documents to assist guide nursing home employers in their response. The CDC has issued Considerations for the Public Health Response to COVID-19 in Nursing Homes, (April 29, 2020). This guidance is intended to assist nursing homes and public health authorities with response in nursing homes. This guidance supplements but does not replace recommendations included in the CDC’s earlier Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes. OSHA just issued a COVID-19 Guidance for Nursing Home and Long Term Care Facility Workers, (May 14, 2020), which employers can follow to help protect nursing home workers and long term care facility workers from exposure to the coronavirus.

The CDC advises that nursing homes should:

  • Act now to implement all COVID-19 preparedness recommendations, even before cases are identified in their community
  • Address asymptomatic and pre-symptomatic transmission, implement source control for everyone entering a healthcare facility (e.g., healthcare personnel, patients, visitors), regardless of symptoms.
    • Cloth face coverings are not considered personal protective equipment (PPE) because their capability to protect healthcare personnel (HCP) is unknown. Facemasks, if available, should be reserved for HCP.
    • For visitors and residents, a cloth face covering may be appropriate. If a visitor or resident arrives to the facility without a cloth face covering, a facemask may be used for source control if supplies are available.
  • Dedicate an area of the facility to care for residents with suspected or confirmed COVID-19; consider creating a staffing plan for that specific location.

In its nursing home and long-term care facility workers news release and alert, OSHA suggests the following measures that can help protect employees working in nursing homes and long term care facilities, including:

  • Require workers to stay home if they are sick;
  • Screen workers and residents regularly for signs and symptoms consistent with the coronavirus. Send sick workers home or to seek medical care;
  • Closely monitor and take additional precautions regarding employees and residents who may have been exposed to an individual with the coronavirus;
  • Follow CDC guidance on updating existing resident visitation policies;
  • Ask visitors to inform the facility if they develop a fever or symptoms consistent with the coronavirus within 14 days of their visit;
  • Maintain at least 6 feet between workers, residents, and visitors to the extent possible, including while workers perform their duties and during breaks;
  • Stagger break periods to avoid crowding in breakrooms;
  • Consider alternatives to in-person large group gatherings (e.g., staff meetings, resident activities);
  • Always follow good infection prevention and control practices. Consult OSHA’s COVID-19 guidance for healthcare workers and employers.
  • Provide handwashing facilities and alcohol-based hand sanitizer with at least 60 percent alcohol throughout facilities;
  • Regularly clean and disinfect shared equipment and frequently touched surfaces in resident rooms, staff workstations, and common areas;
  • Use hospital-grade cleaning chemicals approved by the Environmental Protection Agency (EPA) from List N or EPA-approved, hospital grade cleaning chemicals that have label claims against the coronavirus;
  • Ensure workers have and use any personal protective equipment (PPE) they need to perform their jobs safely;
  • Continually monitor personal protective equipment (PPE) stocks, burn rate, and supply chains. Develop a process to decontaminate and reuse PPE, such as face shields and goggles, as appropriate. Follow CDC recommendations for optimization of PPE supplies;
  • Train workers about how to protect themselves and residents during the pandemic; and
  • Encourage workers to report any safety and health concerns.

These recommendations are consistent with OSHA’s general guidance for employers and likely also apply to private duty aides employed by residents’ families. By following this guidance, where feasible, employers can demonstrate compliance with OSHA’s General Duty Clause to maintain a workplace free from any recognized hazard. Compliance will also demonstrate the employer’s adoption of the standards of care to reduce liability for state tort claims.

In addition, the Governors of New York and Texas have recently directed that nursing home workers be tested for COVID-19. While in Texas such testing is to be carried out by State agencies, in New York, preliminary indications are that the facilities will be responsible.

Implementing these guidances and directives raises a myriad of additional legal considerations. In developing a COVID-19 workplace safety and testing program, facilities should not overlook both general and COVID-specific issues such as immunity from liability, informed consent, employee accommodations, resident rights and information privacy.
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CDC Issues Guidelines for Reopening
The Centers for Disease Control and Prevention (CDC) recently issued guidance titled “CDC Activities and Initiatives Supporting the COVID-19 response and the President’s Plan for Opening America Up Again.” The 60-page document details the initiatives, activities, and tools the CDC is using to support the effort to reopen the country amid the ongoing COVID-19 emergency, as well as interim guidance for childcare programs, schools and day camps, employers with high-risk workers, restaurants and bars, and mass transit administrators.

CDC Priorities and Initiatives

Testing
As part of its new guidance, the CDC has identified COVID-19 testing as essential to reopening the economy, and the guidance thus includes recommendations for prioritizing patients for testing, improving the reliability and efficacy of testing, and making testing and monitoring more widely available.

The CDC is also working with federal government partners to provide support to states to expand their testing programs. The CDC’s focus is on assisting states with developing state-specific testing plans that address the unique needs of each state, rather than implementing or mandating a blanket testing program. The CDC is also providing support by augmenting state public health laboratories with needed testing supplies, such as testing devices and reagents and working with the White House Coronavirus Task Force to ensure the available commercial market is able to support the proposed expanded state testing efforts. The CDC’s stated goal is to achieve a rate of less than 10% positive COVID-19 tests among symptomatic, asymptomatic, and pre-symptomatic individuals.

The CDC is also focused on improving testing for surveillance and outbreak control so it may identify and respond to virus clusters before they spread. This effort includes using existing, nationwide surveillance systems to identify potential outbreaks, including use of the CDC’s Influenza-Like Illness Network and the National Syndromic Surveillance Program as well as enhancing case investigation and contact tracing through increased public health staff and rapid testing capability.

The guidelines further call for increased testing of asymptomatic individuals, and clear indications for serologic testing, given the utility of serologic testing for understanding the transmission of the virus, and potential immunity in the population. Lastly, the CDC is focused on improving existing infrastructure and technology to improve data flow and case reporting. These efforts include aiding in the development and integration of solutions to expand state and community-wide sites to ensure citizens receive comprehensive, up-to-date information about the prevalence of the virus in each community.

Phased Reopening
Apart from its guidance aimed at expanding COVID-19 testing, the CDC has proposed a three-phased plan for reopening that outlines an approach for relaxing community mitigation measures while protecting vulnerable populations, such as the elderly and those with underlying health conditions. In conjunction with the three-phased approach, CDC guidelines propose the use of six “gating criteria” that should be assessed before progressing into the next phase of reopening. The approach can be implemented statewide or community-by-community at each state governor’s discretion.

These gating criteria include decreases in newly identified COVID-19 cases, decreases in emergency department and/or outpatient visits for COVID-19-like illness, and the existence of minimum infrastructure for a robust testing program. As an example, to enter Phase 1 of reopening, a community would assess the gating criteria of decreases in newly identified cases and would need to determine whether there is a downward trajectory (or near-zero incidence) of documented cases over a 14-day period. Consideration between phases should be given to such factors as existing public health capacity based on certain measurable criteria, such as contact tracing and incidence relative to local public health resources. The guidance acknowledges some communities may progress sequentially through the reopening phases while other jurisdictions may end up moving backwards at certain points, based on an ongoing assessment of the gating criteria against the threshold for entering each phase.

Additional Guidance
The guidance also includes a proposed operational plan for surveillance of COVID-19 cases, health care system capacity surveillance, and guidance on infection control, contact tracing, and test usage.

Setting Specific Guidance
The CDC has included updated guidance to assist specific types of businesses as they begin to reopen, with a “menu” of safety measures contained within three steps that businesses may use as a reference as they “scale up” their operations. Businesses are free to choose the measures applicable to their operations and local community, as well as applicable state and local requirements. Mitigation efforts will continue to be necessary even at the highest step until a vaccine or therapeutic drug becomes widely available.

Employers with Workers at High-Risk
The guidance recommends that as workplaces begin to scale up activities towards pre-COVID-19 operating practices, they recognize some workers are at higher risk for severe illness from COVID-19. Such workers include individuals over age 65 and those with underlying medical conditions, such as chronic lung disease, hypertension, weakened immunity, or severe obesity. Workers at higher risk for severe illness should be encouraged to self-identify, and employers should avoid making unnecessary medical inquiries. Employers should consider carefully how to reduce workers’ risk of exposure to COVID-19 consistent with relevant Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA) regulations and EEOC guidance.

The recommended steps for scaling up are:

  • Step 1: Scale up only if business can ensure strict social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place.
  • Step 2: Scale up only if business can ensure moderate social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers; workers at higher risk for severe illness are recommended to shelter in place.
  • Step 3: Scale up only if business can ensure limited social distancing, proper cleaning and disinfecting requirements, and protection of their workers and customers.

The CDC guidance further notes that employers should protect employees at higher risk for severe illness by considering accommodations, such as offering them options to work remotely and/or job duties that minimize contact with others.

Child Care Programs
The CDC guidance includes a gradual scale up of childcare programs towards pre-COVID-19 operating practices, because such programs are crucial to helping parents and guardians return to work. Because all jurisdictions may not implement the same plan, the CDC guidance notes that all decisions about following the recommendations should be made locally, in collaboration with local health officials who can help determine levels of COVID-19 community transmission and the capacities of the local public health system and health care systems.

The recommend steps for scaling up are:

  • Step 1: Restrict to children of essential workers.
  • Step 2: Expand to all children with enhanced social distancing measures.
  • Step 3: Remain open for all children with social distancing measures.

Schools and Day Camps
As communities scale up to pre-COVID-19 operating practices in K-12 schools and summer day camps, the CDC provides recommendations for keeping communities safe while resuming peer-to-peer learning and providing support for parents and guardians returning to work.

The recommended steps for scaling up are:

  • Step 1: Schools that are currently closed should remain closed. Distance learning should be provided for all students. School meal programs and other support services should be offered, as feasible. Camps should be restricted to children of essential workers and for children who live in the local geographic area only.
  • Step 2: Remain open with enhanced social distancing measures. Restrict attendance to children of essential workers and children who live in the local geographic area only.
  • Step 3: Remain open with distancing measures. Restrict attendance to children of essential workers and children from limited transmission areas (other Step 3 areas) only.

Restaurants and Bars
The guidance provides recommendations for how food service industry businesses can maintain operations and a safe and healthy work environment for employees, while reducing the risk of COVID-19 spread for both employees and customers.

The recommended steps for scaling up are:

  • Step 1: Bars remain closed and restaurant service should remain limited to drive-through, curbside take out, or delivery with strict social distancing.
  • Step 2: Bars may open with limited capacity; restaurants may open dining rooms with limited seating capacity that allows for social distancing.
  • Step 3: Bars may open with increased standing room occupancy that allows for social distancing; restaurants may operate while maintaining social distancing.

Mass Transit Administrators
Mass transit is critical for many individuals to commute to and from work and to access essential goods and services. The guidance provides recommendations for how mass transit administrators can maintain healthy business operations and a safe and healthy work environment for employees, while reducing the risk of COVID-19 spread for both employees and passengers.

The recommended steps for scaling up are:

  • Step 1: Restrict ridership to essential critical infrastructure workers in areas needing significant mitigation and maintain strict social distancing as much as possible.
  • Step 2: Maintain social distancing between transit riders and employees as much as possible.
  • Step 3: Encourage social distancing as much as possible

Finally, for all of these categories, the guidance also includes suggested safety actions, approaches for monitoring and preparing for cases, recommendations for promoting social distancing, staff training, and hygiene protocol, based on the specific setting The CDC indicates it will update the guidance as it learns more about COVID-19 and best practices to prevent its continued spread.
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Big FCRA Changes Ahead? HEROES Act Would Ban Reporting of Adverse Information During National Emergencies—But Is This Workable?
A1,815-page House bill has just been introduced that affords $3 trillion in relief to consumers and businesses impacted by COVID 19. The bill (official title: the Health and Economic Recovery Omnibus Emergency Solutions Act, or “HEROES Act”) addresses numerous topics, but I’d like to focus on one: amendments to the Fair Credit Reporting Act (“FCRA”) designed to prevent reporting of adverse information arising out of a national emergency. However well-intentioned these provisions may be, they work an extreme—some might say unworkable and crazy— shift to the credit reporting landscape. If implemented, these changes would have significant negative impact on the financial services industry and consumers’ ability to get credit at rates reflecting their true repayment risk. The House will vote on the bill this Friday but—unsurprisingly given the bill’s drawbacks— the odds of it passing the Senate and being signed by the President in its current form lie somewhere between very unlikely and a snowball’s chance in Hell. Below are a handful of the troublesome amendments to the FCRA proposed by the HEROES Act:

  • All Adverse Information Arising from “Major Disaster” Must Be Excluded from Consumer Reports. Under the HEROES Act, consumer reporting agencies (“CRAs”) are prohibited from including “an adverse item of information” (other than a felony conviction) that was the result of “any action or inaction that occurred” during a period declared to be a “major disaster” by the President. There is a similar prohibition on furnishers furnishing such adverse information to CRAs. Think about that. But when is an adverse fact “the result of” an action or inaction that occurred during an emergency? Some cases are easy—I’ve been in the hospital for two months with COVID-19, couldn’t work and so missed payments on my credit cards and mortgage. Fine. But if I’m a CRA and two years from now I want to include a bankruptcy in a consumer report, how could I possibly know if there was some action or inaction that took place during the pandemic such that the bankruptcy could be said to have “resulted” from such action or inaction? It’s an impossible standard.
  • A Catalog of Consumer Woe? HEROES Would Create CFPB Website to Track Consumers’ Economic Hardships. The HEROES Act requires the Consumer Financial Production Bureau (“CFPB”) to establish a website where consumers can report “economic hardship” as a result of a major disaster, including the current COVID-19 pandemic. It does not state that specified events resulting from such hardship (liens, bankruptcies, missed loan payments, etc.) are to be reported or otherwise elaborate on what constitutes an “economic hardship” for purposes of this website. It does, however, require the three credit bureaus and CRAs that qualify as “nationwide specialty consumer reporting agencies” to check this CFPB website weekly and delete from their databases “adverse items of information as soon as practicable after information that is reported appears in the database.” But how will a CRA know what to delete if consumers are not required to be specific about what events are a product of their “economic hardship”? Oh, and the HEROES Act prohibits the CFPB from requiring any consumer to produce any documentation substantiating their claim of economic hardship. Makes sense! Then there are the privacy implications of allowing/encouraging/requiring consumers to catalog their hardships in a centralized government database.
  • Guidance Regarding the Treatment of Missed Payments Is Insufficient. As noted above, the HEROES Act prohibits CRAs from reporting adverse items of information. That leads to some tricky situations. For instance, suppose a bank’s records show that in some months during the pandemic the consumer made payments on his outstanding credit card balance and in some months he did not. Under the HEROES Act, CRAs are not allowed to report the missed payments because they are “adverse items of information.” So the bank will furnish CRAs with payment history for only the months in which he made payments. How does the CRA then report that information without signaling that the consumer didn’t make the payment during the months not reported?
  • Debt Collection. Debt collectors routinely obtain consumer reports prior to attempting to collect a debt in order to confirm that debtors have not declared bankruptcy. If a consumer declares bankruptcy during a pandemic but CRAs can’t notify debt collectors of such bankruptcy, then debt collectors either run the risk of violating the law by attempting to collect debt from a bankrupt debtor or it has to stand up internal processes to check relevant sources to determine whether the debtor is bankrupt, adding significant cost to the collection effort. This will be an unfair burden for debt collectors and increase the cost of credit for consumers.
  • Making Credit More Expensive. While the HEREOES Act raises many questions regarding reporting adverse information during an emergency, one thing is clear—the cost of credit is going up if the HEREOES Act becomes law. When lenders have more information about consumers, they can make finer distinctions among consumers about their relative default risks, which leads to better terms for many consumers. This is the main driver behind the push towards “alternative credit data”: it allows lenders to identify potential borrowers that are a good credit risk in a pool of consumers that don’t have much of a footprint in the traditional credit universe because, g., they lease an apartment, do not use credit cards or don’t have checking accounts. To the extent regulatory prohibitions limit what data lenders are allowed to use in underwriting, the less lenders are able to offer loan terms that match a consumer’s true credit risk, making credit more expensive for everyone. This would undoubtedly happen if the HEROES Act were to pass in its current form.

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State Developments

New York City Commission of Human Rights Published a FAQ for Pre-Employment Testing for Marijuana
Marijuana Testing in Employment as of May 10, 2020, covered employers are not permitted to test job candidates for marijuana or tetrahydrocannabinols (THC) as a condition of employment. There are several exceptions, discussed further below, where testing job applicants for marijuana or THC for specific kinds of jobs is still permitted.

Q. May an employer still test current employees for drug use, despite the prohibition on pre-employment testing for marijuana?
A. Yes. The law prohibits employers from testing job applicants for marijuana or THC, with some exceptions. However, it does not change employers’ ability to drug test current employees.

Q. May an employer discipline its employees for bringing drugs to the workplace or for coming to work under the influence of marijuana or THC?
A. Yes. The law does not limit employers’ ability to ensure that their workplaces remain drug-free through policies, discipline, and other measures.

There are some exceptions to this law. Employers may require tests for job applicants applying for specific types of jobs. Testing is permissible where:

  1. Required by the U.S. Department of Transportation under 49 C.F.R. Part 40 or related state and local rules (e.g., flight crew and train dispatchers);
  2. Required by the federal government as a condition of receiving a contract or grant;
  3. Required by federal or state law “for purposes of safety or security”;
  4. A collective bargaining agreement includes terms related to pre-employment drug testing of job applicants;
  5. The position falls into one of these categories:
    • Police officers
    • Peace officers
    • Law enforcement or investigative positions at the NYC Department of Investigation
    • Positions covered by New York City Building Code § 3321, which covers certain workers at building sites
    • Positions covered by New York Labor Law § 220-h, which covers certain workers at public work sites
    • Positions requiring a commercial driver’s license
    • Positions supervising or caring for children
    • Positions supervising medical patients
    • Positions supervising vulnerable persons

The Commission is finalizing rules that will expand the list of exceptions to include the following positions:

  • Positions that regularly work on active construction sites
  • Positions that regularly operate heavy machinery
  • Positions that regularly work on or near power or gas lines
  • Positions that drive motor vehicles on most work shifts
  • Positions that fuel an aircraft, provide information regarding aircraft weight and balance, or maintain or operate aircraft support equipment
  • Positions where drug impairment would pose an immediate risk of death or serious physical harm to the employee or to other people

For claims arising between May 10, 2020 and the date when the rules are finalized, the Commission will not be filing enforcement actions related to the above-listed positions.

If you believe you have been asked to undergo testing for marijuana or THC in violation of the law, we can help. Contact the NYC Commission on Human Rights by calling 311 or call the Commission’s Infoline directly at (212) 416-0197. For more information, visit NYC.gov/HumanRights.
https://www1.nyc.gov/assets/cchr/downloads/pdf/FAQ_Preemployment_Testing_Marijuana_May8_2020.pdf

New York City Ban on Pre-Employment Drug Testing Takes Effect May 10, 2020
Starting May 10, 2020, New York City employers may not require prospective employees to submit to testing for the presence of marijuana or tetrahydrocannabinols (or THC, the main psychoactive component of marijuana) in an individual’s system as a condition of employment. Currently, neither New York state nor New York City have any general ban on drug testing during employment.

The long-awaited ban, which was passed in April 2019 and is included as an amendment to the New York City Human Rights Law, outlines several exceptions based on the employer’s industry and the prospective position. These include, for example, police or peace officers, positions requiring a commercial driver’s license or those governed by Department of Transportation regulations, positions subject to testing under federal or state regulations or grant conditions, and positions requiring the supervision or care of children, medical patients or vulnerable persons. The new law also exempts positions that will be subject to a collective bargaining agreement that already addresses pre-employment drug testing for those prospective employees. The amendment also includes an exception for positions with the potential to impact the health or safety of employees or the public as identified by the New York City Commission.

In March 2020, the New York City Human Rights Commission issued proposed rules, which include proposed categories for safety sensitive roles, including positions that require regularly working on an active construction site, or power or gas utility lines, positions regularly operating heavy machinery, positions in which an employee operates a motor vehicle on an approximately daily basis, or positions in which impairment would pose an immediate risk of death or serious physical harm to the employee or others. The public comment period for the proposed rules has passed, but the expected finalizations of these rules has been delayed as a result of the COVID-19 pandemic.

The amendment bans only pre-employment testing for marijuana; it does not address testing for any other substance or mid-employment marijuana testing. However, all New York state employers should be mindful of the potential application of the New York medical marijuana law and applicable employment-related protections, including its relation to disability protections and accommodations under antidiscrimination laws.

Failure to adhere to the new ban on pre-employment screening can result in civil penalties up to $250,000 as well as consequential and punitive damages and attorneys’ fees.

Employers in New York City should review their existing drug-testing policies to confirm that they are in compliance with the new law, as well as contact their testing vendors to ensure any pre-employment tests comply with the new law. We encourage clients to reach out to our HR Compliance, Training and Transactions team with any questions or to review any existing policies.
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Suffolk County, NY; St. Louis, MO; and Waterloo, IA Are The Three Most Recent Localities to Enact Ban-the-Box Laws.
These laws restrict private employers’ ability to inquire into a job applicant’s criminal history. Suffolk County and St. Louis prohibit such inquiries until after an initial interview, while Waterloo prohibits such inquiries until after a conditional offer of employment has been made. St. Louis’ law will take effect on July 1, 2020, Suffolk County’s law will take effect August 25, 2020, and Waterloo’s law will take effect January 1, 2021. Click here for St. Louis, here for Suffolk County, and here for Waterloo.
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Virginia Governor Signs Marijuana Decriminalization Law Containing Employment-Related Provisions
On May 21, 2020, Virginia Governor Ralph Northam signed legislation (HB 972/SB 2) to decriminalize simple marijuana possession and prohibit employers from requiring applicants to disclose information related to past criminal charges for such possession. The law will take effect July 1, 2020.

Currently, Virginia law allows individuals charged with marijuana possession to be fined and/or to be imprisoned for up to 30 days for a first offense. Subsequent offenses may be charged as Class 1 misdemeanors punishable by up to one year in jail and/or a fine of up to $2,500. The new law decriminalizes possession of up to one ounce of marijuana, punishable by a fine of no more than $25.

Additionally, the law provides that convictions for simple marijuana possession will not be reflected on a person’s criminal record. Records relating to prior charges for these minor offenses—including being arrested for, charged with, or convicted of such conduct—will generally no longer be open to public inspection and disclosure, with narrow law-enforcement-related exceptions (e.g., to determine eligibility to possess or purchase a firearm, to prepare a pretrial investigation report, and for certain employment opportunities with certain state agencies). If, however, a person is found to have possessed marijuana while operating a commercial motor vehicle, that violation will be reported to the state Department of Motor Vehicles and added to the person’s driving record. Employers (including state agencies and state and local governments) and educational institutions are prohibited from requiring applicants to disclose information relating to charges of simple marijuana possession in any application, interview, or during any other part of the hiring, admission, or licensing process. Anyone who willfully violates these provisions is guilty of a Class 1 misdemeanor for each violation. In addition, the law permits individuals whose simple marijuana possession charges are not pursued or otherwise dismissed, or who are acquitted of such charges, to file a petition requesting police and court records related to the charge be expunged.
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Court Cases

TransUnion to Seek Supreme Court Review After Ninth Circuit Finds Class Members Had Standing and Partially Upholds Punitive Damages Award
A hotly contested ruling in a Fair Credit Reporting Act (“FCRA”) class action case will soon be appealed to the Supreme Court of the United States. The Ninth Circuit in Ramirez v. TransUnion LLC, Case No. 17-17244, recently granted the parties’ Joint Motion to Stay the Mandate, seeking to stay the Ninth Circuit’s mandate pending TransUnion’s filing of a petition for writ of certiorari in the Supreme Court. The Motion to Stay comes soon after the court denied TransUnion’s Petition for Rehearing or Rehearing En Banc regarding the Ninth Circuit’s decision in Ramirez v. TransUnion LLC, 951 F.3d 1008 (9th Cir. 2020).

In Ramirez, the Ninth Circuit held for the first time that every class member in a class action lawsuit needs “standing” to recover damages at the final judgment stage. The 8,185 member class alleged that TransUnion, knowing that its practice was unlawful, violated the FCRA by incorrectly placing terrorist alerts on the front page of consumers’ credit reports and later sending the consumers misleading and incomplete disclosures about the alerts and how to remove them. The court held that each class member was required to, and did, have standing, even though the credit reports of over 75% of the class were not actually disclosed to a third party because TransUnion’s alleged violation of the consumers’ statutory rights under the FCRA, by itself, constituted a concrete injury. The Ninth Circuit also found that the jury’s punitive damages award of 6.45 times the statutory damages award was unconstitutional and reduced it to 4 times the statutory damages award. The Ramirez decision is discussed in more detail here.

In its Petition for Rehearing, TransUnion claimed that the dissent had the correct view, and the majority’s decision “not only conflicts with Supreme Court teachings but puts the Ninth Circuit on the wrong side of a lopsided circuit split.” TransUnion argued that the class of consumers did not have standing for their FCRA claims unless their credit reports were disclosed to a third party. TransUnion further alleged that the class should have been decertified because Ramirez, the named plaintiff, “was radically atypical of the class he purported to represent” since there was no evidence that any other class member’s credit report was disseminated. Finally, TransUnion disputed the court’s punitive damages award because a reduction to 4 times the statutory damages award was not enough. According to TransUnion, the Supreme Court requires, at a maximum, a punitive damages award “equal to compensatory damages…when compensatory damages are substantial.”

TransUnion concluded its Petition for Rehearing by stating:

It is no exaggeration to say that, for many class members, the first indication that they were injured at all will be when they receive a $4,925.10 check in the mail. That absurd result is the product of ignoring basic requirements of Article III, Rule 23, and due process.

As of the date this article is published, TransUnion has not yet filed its petition for writ of certiorari in the Supreme Court.
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International Developments

New Guideline on Consent Under the GDPR
Guidelines 05/2020 on consent under Regulation 2016/679 Version 1.0 was adopted on 4 May 2020.
https://edpb.europa.eu/sites/edpb/files/files/file1/edpb_guidelines_202005_consent_en.pdf

 

Other Developments

Guidance for Employers Planning to Reopen in a COVID-19 World
With some areas of the country gearing up to reopen, employers are contemplating how to welcome employees and customers back safely. Employers are finding COVID-19 presents new legal considerations and a vast framework of guidance and regulations. Below we have provided a list of helpful resources and summaries identifying the relevant guidance to assist in a safe and successful re-opening of a business. Also provided are tips on developing a COVID-19 return to work plan, and the most effective way an employer can communicate to its employees, customers, vendors, and clients on the policies in place to ensure a safe and healthy business.

1. Review the Federal and Local Law
While the COVID-19 pandemic is responsible for a number of new laws, such as the Families First Coronavirus Relief Act (“FFCRA Act”) and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), employers must also take steps to ensure that they comply with laws in place prior to COVID-19, such as the Americans with Disabilities Act (“ADA”). The coronavirus presents a conundrum for employers when it comes to providing a safe workplace free from recognized hazards that could cause death or serious physical harm because it is highly contagious and its effects on individuals range from none or minimal symptoms to death. Since the United States has not experienced a true pandemic in more than 100 years, many agencies have provided guidance to explain how the pandemic applies to current laws. Due to this uncertainty, employers should make substantial effort to review and follow the Federal guidelines. Below is a compiled and highly recommended list of federal resources:

Keep in mind, state and local agencies are also playing a critical role during the pandemic. Just like the federal government, state and local municipalities have enacted laws and regulations related to COVID-19. For example, Seattle recently passed an ordinance that prohibits commercial landlords from raising rents on small businesses, and requires landlords to establish payment plans for small businesses failing to make rent because of COVID-19.

For Washington businesses, here are a list of state resources: High Risk Employee Proclamation 20-46.

2. Developing a Reopening Plan
Every business is different, and even businesses within the same industry may have dramatically different reopening considerations, given variance in physical workplaces, workforce demographics, technology, and culture. Companies should draft reopening plans with three distinct goals: (1) compliance with federal and local laws and regulations; (2) observing best practices in order to reduce the spread of the virus; and (3) limiting liability in the event of a positive case. To achieve these goals, employers should evaluate each position and workstation in its organization in order to ensure there are no unnecessary risks of transmission. Some examples of practices that should be put in place include observing social distancing and hand washing; distributing masks to employees, visitors, and customers with the requirement that everyone wear masks while on company premises; and training managers on how to recognize and respond to an employee who may have been exposed to or is exhibiting potential symptoms of coronavirus. Taking these steps and being transparent will provide employees with the necessary confidence that they are returning to a safe working environment and that their employer had their best interest in mind when considering their specific work activities and surroundings prior to returning to operation. It is clear that efforts to reduce the spread of COVID-19 will pay hefty dividends in the form of a healthy and stable workforce and fewer work stoppages.

3. Communications with Employees, Clients, Visitors, and Customers
Some employees will be excited to return to work, while others may be reluctant. Clear and effective communication will help reduce any anxiety caused by returning to work during a pandemic. When drafting a COVID-19 policy employers should thoughtfully adopt simple guidelines that are understood by all employees and can quickly be implemented. Employers are encouraged not to overwhelm employees with COVID-19 information, but rather focus on the general steps that all employees can take to reduce COVID-19 transmissions and the specific changes to each employee’s job to reduce the risk of transmission. Furthermore, employers who have taken the time to consider every position and workstation in its operation will earn the confidence and trust of their employees faster than those who do not.

Businesses must also take into account potential COVID-19 risks with clients, visitors, and customers. First, the exposure of coronavirus and its potential deadly effects may create tortious liability against the business. Second, customers and clients may be uncomfortable with the new “normal,” resulting in them limiting public outings, or outright refusing to comply with the businesses’ COVID-19 mandates. Third, negligence claims related to virus transmissions against a business have been historically rare, but the plaintiff’s bar may take this opportunity to test these claims. Fourth, the economic circumstances may create financial incentive for customers to sue businesses related to COVID-19 transmissions.

To gain back business from customers, visitors, and clients, they must be able to trust that a business genuinely has their safety in mind. This trust will need more than documentation and operational changes. In other words, customers do not just want to be safe, they want to feel safe. Businesses may want to consider undertaking efforts to point out changes to customers, even when they are obvious. For example, a plastic barrier between a cashier and a customer will help reduce the transmission of the virus. However, a self-serving sticker on the barrier explaining that the company is using barriers to “Reduce the Spread” gives the impression that the company has engaged in extensive COVID-19 planning and may reduce the companies risk of becoming a target and has the added benefit of serving as a helpful exhibit should a matter proceed to litigation.

It is undeniable that during this unprecedented time, it is stressful to be a business owner. However, if you follow the above guidance and review the links to the federal and state materials, you will have the most up-to-date information to provide you with the confidence necessary to reopen your business knowing that you have taken all necessary steps to keep your employees, customers, and visitors safe.
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A Checklist for the U.S. Food Retail Industry in Light of COVID-19 Re-openings
On April 24, 2020, Alaska became the first state to allow restaurants to reopen to dine-in customers (subject to certain precautions) since the COVID-19 pandemic began. On April 27, 2020, Georgia and Tennessee followed suit. Several other states have announced similar plans to reopen restaurants to dine-in customers throughout May.

Each state has its own requirements for re-opening, and many include some combination of the following restrictions: (1) workers must wear masks; (2) restaurants can only allow outdoor dining; (3) establishments can only be filled to a certain capacity (typically 25% or 50%); (4) reservation-only dining; and (5) hand sanitizer must be available at each table or at the restaurant’s entrance.

In light of these re-openings, we suggest that companies in the food retail industry consider the following, if they have not done so already:

  • Determine whether it is financially feasible to reopen if required to comply with the guidance set forth in the applicable order(s), or, if located in a state that has not yet provided rules for re-opening, consider which requirements would or would not be feasible.
  • Determine what supplies and goods will be required to reopen and develop a plan for sourcing the same.
  • Determine whether any physical modifications to the business will be required (i.e. barriers or screening between employees and customers and the spacing of payment terminal and cash registers).
  • Consider developing a process for providing temperature screening for employees who are showing signs of illness and review sick leave policies in order to encourage any employee that is feeling unwell to stay home.
  • Consider also requiring temperature screening of customers and develop a plan for the same, including how the customer will be informed of such requirement.
  • Determine, based on square footage, how many customers can be accommodated at any one time and develop a process for queuing customers outside of the business or a reservation process, if the business does not already have one.
  • Identify the measures that can be taken to continue to keep the workplace sanitized in line with CDC, FDA, and OHSA guidance documents. For example, the FDA released its Best Practices for Retail Food Stores, and Food Pick-Up/Delivery Services During the COVID-19 Pandemic, whereby it recommends that establishments do the following:
  • Manage employee health by, among other things, instructing employees to notify their supervisor if they know they have or have been exposed to COVID-19, and frequently disinfecting and cleaning workspaces and equipment;
  • Promote employee personal hygiene by, among other things, emphasizing washing hands for at least 20 seconds and requiring employees to use gloves to avoid direct bare hand contact with ready-to-eat foods; and
  • Manage operations by always following the four steps to food safety: clean, separate, cook, and chill.

Additionally, the OSHA released Guidance on Preparing Workplaces for Covid-19, which recommends that businesses:

  • Develop an infectious disease preparedness and response plan;
  • Prepare to implement basic infection prevention measures;
  • Develop policies and procedures for prompt identification and isolation of infected people, if applicable;
  • Develop, implement, and communicate about workplace flexibilities and protections; and
  • Implement workplace controls, such as installing high-efficiency air filters and plastic sneeze guards.

The OSHA also released its Guidance for Restaurants & Beverage Vendors Offering Takeout or Curbside Pickup, whereby the OSHA recommends that restaurants offering takeout or curbside pickup, among other things:

  • Avoid direct hand-off, when possible;
  • Display a door or sidewalk sign with the services available, instructions for pickup, and hours of operation;
  • Reserve parking spaces near the front door for curbside pickup only; and
  • Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible.
  • Evaluate how best to implement shift-staggering of employees.
  • Determine how to best implement the social distancing requirements.
  • Develop an enforcement mechanism for maintaining social distancing in the business, including what notices and strategies can be used to maintain separation between employees or customers.
  • Document each step of the process including the internal analysis and reasons and conclusions reached, the measures the company decides to implement, and the steps taken to execute the action plan.

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Returning to the Workplace: Testing Employees for COVID-19
With the U.S. Equal Employment Opportunity Commission’s (EEOC) recent “green-light” to test employees for COVID-19 before permitting them to enter the workplace, more employers are considering incorporating testing as part of their return-to-work planning. In some instances, mandatory testing may be a reactive response to reports of employee(s) being symptomatic or testing positive. In other instances, testing may be seen as a prophylactic measure designed to both restore employee and customer confidence and mitigate against perceived litigation risk. At the same time, the federal government has not issued any mandatory guidance on testing, instead making recommendations that leave employer’s concerns to be sorted out at the state and local level, and potentially in the courthouse. Accordingly, with this alert, we explore the current “knowns” and “unknowns” associated with developing sound COVID-19 testing policies and protocols.

What We Know About Testing:

It may seem obvious, but we know that employer-mandated testing is permitted during this pandemic. As explained by the EEOC, as long as we are in a pandemic as determined by the World Health Organization (WHO), “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” The EEOC has stated that any test must be “accurate and reliable,” and that employers can assess accuracy and reliability by consulting guidance from the U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and other public health authorities. Accordingly, the onus is on companies to ensure that whichever test they elect to administer has been deemed accurate and reliable.

We also know that employers should, according to the EEOC, “consider the incidence of false-positives and false-negatives associated with a particular test.” This means that employers cannot merely choose an approved testing method and call it a day. Rather, employers must also consider how that particular testing method’s false-positive and false-negative likelihoods may impact testing (and retesting) protocols. As discussed below, the EEOC has not elaborated as to what constitutes adequate “consideration” in this context. With that said, employers, at minimum, should mandate consistency in determining how they address the prospect of potential false positives and false negatives.

We know that an accurate COVID-19 diagnostic test only reveals whether the virus is currently present, and that a negative result does not mean that an employee will not contract the virus in the future. Accordingly, employers should be diligent regarding prevention policies in the workplace, even after testing all of their employees. Furthermore, employers should, if possible, consider administering several rounds of testing. Indeed, although not explicitly stated, the EEOC’s testing guidance tacitly condones multiple rounds of testing given the realities of virus contraction. It also discourages employers from adopting testing protocols that excuse individuals who test negative from future testing.

We know, that per the EEOC, testing is not a substitution for other infection control practices. If an employer mandates testing, it “should still require—to the greatest extent possible—that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.”

We know that, pursuant to longstanding EEOC guidance under the Americans with Disabilities Act (ADA), all medical information about employees should to be stored separately from their personnel file and access to this confidential information should be limited. The EEOC has also explained that employers may maintain COVID-19-related medical information in existing medical files. If an employee tests positive or has symptoms, an employer may inform persons with a need to know (e.g., that employee’s supervisor) that the employee is unable to work and is being placed on leave to quarantine and, if applicable, will be working from home. Still, and even as part of contact tracing, employers should not disclose the employee’s symptoms, test results, or health status to co-workers or other colleagues absent the employee’s consent.

We know that CDC guidance addresses how testing can play a critical role in determining whether individuals may discontinue self-isolation. For example, CDC guidance explains that a person who has demonstrated COVID-19 symptoms may discontinue isolation if the following has occurred: (i) resolution of fever without the use of fever-reducing medications; (ii) improvement in respiratory symptoms; and (iii) two consecutive nucleic-acid test results from specimens collected at least 24 hours apart have come back negative. Employers should consider consulting and incorporating this guidance from the CDC into any employee testing protocol.

Yet, we know that the EEOC’s new guidance does not require employers to test their employees for COVID-19. In fact, currently, no public health authority in the United States has instituted a mandatory testing regime. Even though employers are not required to subject their employees to COVID-19 testing, such testing, if feasible, is a method to demonstrate reasonability and provide employees and clients/customers with confidence in the business.

We know that new OSHA guidance requires employers to report confirmed cases of COVID-19 when the case is “work-related.” Under previous OSHA guidance, employers outside the healthcare/emergency responder fields were required to record positive cases of COVID-19 with OSHA only if there was objective evidence that the case was work related. However, recently issued guidance, effective on May 26, 2020, clarifies that COVID-19 is a recordable illness that must be reported on OSHA Form 300 if: (1) an employee has a confirmed case of COVID-19; (2) the employee was exposed to COVID-19 in the workplace; and (3) the case results in death, days away from work, restricted work, transfer to another job, or serious medical treatment. This new guidance specifies that merely recording an instance of COVID-19 does not mean that the employer violated any OSHA standard. It also provides employers with a list of considerations that OSHA will assess in determining whether an employer has properly reported a COVID-19 case as work-related. For example, OSHA will consider the reasonableness of the employer’s investigation into whether the infection was work-related. OSHA will also consider the evidence and information reasonably available to the employer when making the work-relatedness determination. As stated by OSHA, “[i]f, after the reasonable and good faith inquiry…, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.” In light of this new guidance, employers should consult with counsel to determine whether a positive COVID-19 case in the workplace should be reported to OSHA.

What We Still Don’t Know About Testing:

It is still unclear whether employers can test for COVID-19 antibodies, which indicate that a person previously had the virus. The EEOC’s permissive guidance applies to “a test to detect the presence of the COVID-19 virus.” As background, screening approaches for COVID-19 primarily include “diagnostic” tests for active infection with SARS-CoV-2 (the virus that causes COVID-19) and “immunoassays” that screen for past infection by detecting antibodies. If the language in the EEOC guidance is followed to the letter, it would appear to bar immunoassays test because they do not “detect the presence of the COVID-19 virus,” but rather indicate whether antibodies are present. Recognizing that we still do not know whether a person can be re-infected with COVID-19 (see below), it is not intuitive whether the EEOC would be permissive in viewing the purpose of immunoassays testing.

We still do not know much about the body’s immune response to the virus, including whether or not previously infected individuals develop immunity. Thus, even if employers are permitted to test employees for antibodies, knowledge that an employee previously had COVID-19 is of uncertain value. As of late April 2020, the WHO has opined there is no evidence that individuals who have recovered have immunity from the virus. Consequently, for the foreseeable future, employees that have recovered from COVID-19 and been cleared to return to work should be considered equally susceptible to the virus as other employees and should be tested accordingly.

We still have no guidance regarding the frequency of testing. In an ideal world, employers would have the ability to conduct daily testing of all employees at their discretion. At this point, however, the availability of testing kits makes that nearly impossible for most businesses, understanding that such mandatory testing could be an otherwise controversial practice. Until affordable tests are widely available, employers should remain diligent in enforcing the traditional methods of screening (e.g. temperature checks, self-monitoring, etc.) and employ testing whenever possible and in a manner likely to produce the most meaningful results.

The EEOC still has not clarified what it means to “consider” the incidence of false-positives and false-negatives associated with a COVID-19 test. Although the EEOC’s guidance counsels employers to consider false-positives and false-negatives, it offers very little in the way of practical application of this suggested “consideration.” Does that mean tests should be administered multiple times? Does it mean that some approved tests should be used in favor of other approved tests?

Considerations for Adopting a Sound Testing Protocol:
Given the variety of business environments, there is no “one-size-fits-all” approach to testing, and employers should adopt protocols that address their specific kinds of workplaces. Regardless the following considerations should form the basis of a sound testing protocol:

  • Testing for COVID-19 must be conducted on a nondiscriminatory basis, meaning that any testing protocol should be applied equally to all employees.
  • Any screening, testing, or inquiry that is broader than necessary to address the potential direct threat should be prohibited. Accordingly, employers should resist any urge to expand testing or screening beyond ascertaining the presence of COVID-19 through a diagnostics test, including being cautious about administering the antibody test given the present lack of clarity as to whether such tests are permitted.
  • It is possible that certain employees with a medical condition may request an accommodation, such as making available an alternative testing method.
  • Employers should consider how any requests to be excused from testing based on faith-based arguments will be handled. For example, an employee’s religious beliefs may prevent them from providing a blood sample for a test. In response, an employer should be prepared to seek alternative testing methods, such as through saliva or swabs.
  • Thoughtfully consider where and how testing will be conducted. If onsite, consider how to mandate maintain social distancing for employees waiting to be tested; provide PPE for persons conducting testing; and exit strategies from the physical workplace for persons who test positive.
  • Consider visitor and vendor screening if such third parties will be needed onsite to support the regular workforce’s return to the workplace.
  • Any testing protocol should be prepared to handle (consistently) an employee’s refusal to submit to testing.
  • Recognize that there may be an obligation under wage and hour laws to pay employees for time spent waiting to be tested, as well as time spent waiting for the results of the test, assuming the employee will not be admitted to the workplace until the employer has received testing results.
  • Require employees to consent in writing to the screening, and to a COVID-19 return to work policy that addresses testing.

https://www.jdsupra.com/legalnews/returning-to-the-workplace-testing-51041/

Frequently Asked Questions When Taking Employee Temperatures as a COVID-19 Precaution in the United States
As retail, food service, and other industries continue to adapt to the ever-changing business environment, employers are implementing new screening programs to help ensure the safety of their workforce and customers during the COVID-19 crisis. Indeed, some form of employee screening is becoming mandatory in a number of cities and counties around the country.

Faced with the current outbreak, many employers—particularly those in food service or other customer-facing retail operations—are considering taking the temperatures of their employees before the employees are allowed to begin work. This bulletin seeks to answer some of the questions that employers, particularly retailers, might have when implementing such programs during the COVID-19 crisis. Note that the guidance is based on the current global pandemic and state of emergency related to COVID-19, and much of this guidance would not apply outside of that context.

1. Is it even legal to take an employee’s temperature, and to instruct employees to stay home if they have symptoms associated with COVID-19?
We covered this in our March 18, 2020 Bulletin, but, generally, the short answer is, “Yes, and Yes.” The Equal Employment Opportunity Commission recently clarified that in light of the current COVID-19 pandemic, employers may measure their employees’ body temperatures. The EEOC also says that employees with symptoms associated with COVID-19, including a fever, may be sent home from work.

2. Do any states require employers to take their employees’ temperatures?
Some states, Kentucky as an example, are now requiring businesses to conduct temperature checks for their employees. Others are encouraging employers to take the temperatures of their employees.

In addition, some cities and counties have issued orders that impose certain obligations on employers to implement a temperature check system. For instance, Tift County, Georgia, instructs employers to “make every effort to take the employee’s temperature and record the same.” Likewise, an order in Dallas County, Texas, instructs employers “to the greatest extent possible and when equipment becomes available” to take the temperatures of their employees. We expect other cities and counties to follow suit, particularly as part of the phase-in approach for business reopening plans.

3. If I want to take my employees’ temperatures, where do I begin?
Employees should be given notice that the company will be implementing a temperature-taking program. This can be done via an email to all employees or posting a notice inside the facility. The notice should say something to the effect of, “To ensure the safety of all of our employees and customers, starting on [DATE], we will begin to take the temperatures of all persons entering our facility. This will be done through a no-touch infrared scanner thermometer. Per the CDC guidelines, if your reading is 100.4 or above, we will not be allowing entry to our facility. We will provide instructions to you on next steps at that time.” By providing notice, you avoid surprising your employees and give them an opportunity to raise any concerns that they may have. Further, some jurisdictions require employers to provide such a notice in order to comply with state privacy laws.

4. I don’t have an infrared scanning thermometer. Will a minimal touch forehead thermometer work?
There is currently no guidance from the Centers for Disease Control and Prevention as to the type of thermometer that an employer should use when taking its employees’ temperatures. The CDC says only, “Employers should measure the employee’s temperature and assess symptoms prior to them [sic] starting work.” Although minimal contact forehead thermometers may work, touchless infrared scanning thermometers are relatively inexpensive and preferred. No matter what type of thermometer is used, the individual conducting the screening should follow the manufacturer’s sanitization protocol between uses and should be trained on its use so that the results can be comfortably relied upon.

There is no need to conduct multiple tests of the same employee or otherwise question the results of the thermometer so long as the individual conducting the test understands what he or she is doing.

5. Who should conduct the screening?
Ideally a qualified third party would perform this screening, but, where not possible or practicable, we recommend the temperature checks be administered by management personnel or, if possible based on the device being used, self-administered.

6. Besides a thermometer, what else do I need in order to conduct the screening?
You will need to obtain hand sanitizer and personal protective equipment for the individual performing the screening. Such PPE may include disposable gloves, masks, and any other supplies needed to sanitize or operate the thermometer according to the manufacturer’s specifications. Employees being checked should also wear masks if available.

7. Where do I conduct the temperature checks?
You should make every effort to perform the testing before employees access the main areas of the facility. Ideally, the location would offer the individuals some privacy so that others (colleagues or customers) would not be able to observe or hear the results of the temperature check. The location should, if possible, allow individuals to remain six feet apart from one another. If your facility is relatively small, consider staggering start times to minimize the chance that lines will form and employees will congregate in a confined area.

8. At what temperature should an employee be sent home?
The CDC currently recommends that if an individual has a temperature of 100.4 degrees or higher, he or she should not leave the home (and therefore should be sent home after the test). Dallas County requires that a worker with a temperature above 99.6 degrees be sent home. Unless your jurisdiction instructs otherwise, defaulting to the CDC recommendation is advised. Note, however, that a fever does not mean that an individual has COVID-19, and the absence of a fever does not mean a person does NOT have COVID-19. As such, you should make sure employees don’t relax other good practices, such as proper and frequent handwashing, social distancing, etc., in reliance on temperature checks.

9. What records should I maintain and who should have access to them?
Generally, unless your jurisdiction requires it, you are under no obligation to maintain a record of employee temperatures or even document that temperature checks were performed. If you do choose to record and maintain the data, you will need to do that in a way that complies with the confidentiality requirements of the Americans with Disabilities Act, and confidentiality and privacy considerations under applicable state and local laws. In addition, if the temperature checks are performed by a physician, nurse, or other health care personnel or technician, OSHA record-keeping requirements may be triggered.

10. What should I do if an employee’s temperature registers at or above 100.4 degrees (or the established CDC threshold)?
The employee should be sent home for the day, at least, and your policies or local requirements may require you to exclude individuals with COVID-19 symptoms for longer. The employer has discretion to determine whether to require that the employee provide a doctor’s note before returning to work, but, again, you should have a policy that you consistently follow and ensure your policy is consistent with any federal, state or local requirements.

11. What if an employee refuses to have his or her temperature taken?
If you are unable to reach a satisfactory resolution with the employee, you should send him or her home if your policy or practice is that all employees must be tested prior to starting a shift.

12. Can I ask the employee about other symptoms?
Yes. In fact, some jurisdictions are requiring that employers “screen” employees by asking about their symptoms, recent travel, and/or whether the individual has been exposed to COVID-19.

13. If an employee informs me that he or she has been exposed to COVID-19, am I required to send that person home?
That depends. Presently, the CDC advises that critical infrastructure workers may be permitted to continue work following potential exposure to COVID-19, provided that they remain asymptomatic and that additional precautions are implemented to protect them and the community. That being said, different states and localities may, depending upon the circumstances, require the individual to self-quarantine for 14 days or more following exposure, and employers may adopt, and many are adopting, quarantine requirements, consistent with general obligations to provide a clean and safe work environment for all employees. We would also recommend not requiring an individual to work if a health care provider or governmental agency has instructed the individual to quarantine, as is true in many instances when an individual has been in close contact with a confirmed COVID-19 case.

14. Must I compensate my employees who administer the tests, or for employees’ time spent being screened?
Based on the Fair Labor Standards Act, we recommend compensating employees who are not FLSA-exempt at their normal hourly rate for time spent administering the testing, as that is time spent performing an assigned task for the benefit of the employer. Of course, if the employee administering the temperature check is an exempt manager, then the time would be compensated by the manager’s regular salary. The compensability of the time spent by the employee having his or her temperature taken is a more difficult issue, and arguments can be made both ways as to whether this time must be compensated. The conservative approach would be to treat the time as compensable; however, an employer with a greater risk tolerance could take the position that the time it takes to have your temperature taken is not compensable, or if it is, the amount of time involved is so small as to be de minimis. Ultimately, this is a decision each employer must make based on its own facts and circumstances and risk tolerance.

Further, you should also consider whether any “call-in” or “reporting pay” laws or predictive scheduling laws are applicable in the jurisdictions where you are operating, including whether those laws require any compensation in this situation. The same is true for more restrictive state minimum wage laws that may define “hours worked” more aggressively.

15. Can I require employees to take their own temperatures before coming to work?
So long as your jurisdiction does not require otherwise, employers may ask employees to take their own temperature before reporting to work. This may be an option for those businesses that lack the physical space, personnel, or equipment to conduct on-site temperature taking; however, we should note that availability of equipment for employees may also be a barrier for some employees, which may affect the overall consistency and effectiveness of this approach. Employers should adhere to the concepts outlined above if they decide to collect or document employee self-temperature checks that are performed at the employee’s home.

16. How long should I plan to be taking employee temperatures?
No one knows precisely how long the pandemic will last. Further complicating matters is the fact that some states and localities continue to be “hot spots” while evidence suggests that others might be moving on from the worst the virus has to offer.

As certain states begin to reopen, most are adopting a phased approach as they relax the restrictions imposed upon businesses. Employers should follow the guidance of the state or county where their stores and employees are located. Attention should also be focused on changing guidance from the EEOC. Although the EEOC has clearly stated that the taking of employee temperatures is a permissible response to the current global pandemic, at some point in the future the EEOC may change course on this guidance based on the continued evolution of the pandemic. Outside the context of a pandemic, employers are generally limited to conducting medical inquiries and exams that are job-related and consistent with business necessity.
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