When workers arrive at a Skanska jobsite at the University of Delaware, they are asked a series of questions such as, “Are you experiencing flu-like symptoms?" and " Have you, or has anyone in your family, been in contact with a person who has tested positive for COVID-19?” They also receive daily temperature checks before beginning work.
Now that moratoriums on nonessential construction have been lifted across the country, contractors are getting back to work with new protocols and provisions in place. One step that many companies have taken is to screen employees, subcontractors and visitors before they set foot on the jobsite for potential coronavirus-related symptoms.
Cincinnati-based Messer Construction, for instance, has implemented daily protocols for screening everyone coming onto a Messer jobsite or into a Messer office. Using a new custom technology platform, Boston-based Shawmut has workers and subcontractors fill out a health form daily. Each employee and sub scans a job-specific QR code prior to being allowed to enter the jobsite.
If an employee is displaying symptoms or is at a higher risk of contracting COVID-19 due to contact with someone who has symptoms, the system flags the worker and they are taken aside for further action.
While employee health screenings are a best practice for keeping coronavirus at bay, there are legal implications that contractors need to be aware of, according to Florida attorney Rick Blystone, labor and employment partner at Cotney Construction Law.
The Americans with Disabilities Act (ADA) prohibits employers from questioning employees about their health, but since the pandemic began, the EEOC has cited examples where it may be appropriate for a company to conduct medical screenings on employees to ensure the health and safety of others in the workplace. These include:
- Asking employees who are ill at work or who call in sick if they are experiencing symptoms of fever, chills, dry cough, shortness of breath or sore throat.
- Requesting information from employees who return from travel about the locations they visited and any symptoms they may be experiencing resulting from the travel.
- Taking employees’ temperatures to determine if they have a fever.
- Conducting screenings if the employee is known to have been exposed to a person who is a confirmed carrier of COVID-19.
Despite these more lenient restrictions, employers must be careful not to violate their employees’ rights under any state, federal or local laws when implementing new protocols, Blystone said. In addition, companies subject to the ADA may not require that workers submit to a COVID-19 antibody test, the U.S. Equal Employment Opportunity Commission (EEOC) said recently.
An antibody test constitutes a medical examination under the ADA, the commission said. And because it doesn’t meet the law’s "job related and consistent with business necessity" standard, employers cannot require the test as a condition workers must meet before returning to work. COVID-19 tests and temperature checks constitute medical exams, too, but EEOC said they satisfy that threshold.
Keep it private
To avoid privacy issues, contractors should not reveal the identity of any employees who test positive for COVID-19. Instead, employers should disclose to other employees that a co-worker (or a visitor to the office or jobsite) has tested positive, without disclosing any identities, and implement appropriate safety protocols.
An exception to this occurs when the employee who has tested positive gives written consent to the employer to make disclosures about his or her condition to co-workers or other third parties.
In addition, Blystone recommends that employees’ temperatures be taken as privately as possible, and that temperatures be taken prior to the start of the workday by a person or administrator who is trained with regards to privacy issues. Employees exhibiting flu-like symptoms should immediately be sent home and not permitted to return to work until they have met the criteria to discontinue home isolation as set forth in the guidelines issued by the CDC, the attorney said.
Also, contractors must keep protected medical information on separate forms and in separate files from regular personnel records.
"Such information should be kept under lock and key and/or password protected," Blystone said, adding that contractors should appoint a trained COVID-19 safety officer who is aware of privacy obligations in order to help mitigate risk and convey to employees that privacy and safety are a priority.
In some instances, it makes sense for contractors to work with an employment lawyer to sort out the best course of action, as rules and recommendations from federal agencies change quickly and multiple laws sometimes come into play at once.
“For instance, it is not difficult to conceive of a scenario in which workers’ compensation law, the ADA, the Family Medical Leave Act (FMLA), and the Families First Coronavirus Response Act, must each be considered in response to a scenario involving an employee who tests positive for COVID-19,” he said. “Certain disclosures might be permitted under workers compensation laws yet prohibited under the ADA and/or FMLA.”
While testing giants LabCorp and Quest are pitching services to employers to detect active infections and antibodies, companies don't seem to be in any rush. Concerns about accuracy, logistics and little consistent guidance from the federal government are among the factors holding them back.
A survey this month by law firm Littler survey found that an overwhelming majority of employer respondents plan temperature checks (89%) and symptom screenings (72%) as a return-to-work strategy, but only 6% are considering diagnostic testing for active infection.
"There is some uncertainty about testing and the accuracy and availability of tests," human resources expert Amber Clayton, told MedTech Dive, a sister publication of Construction Dive, noting her group has yet to issue guidance.
Diagnostics only record a certain point in time, she noted, and for antibody tests there's "no clear research on whether or not somebody who had COVID-19 can get it again."