Contractors should consider privacy with health screenings

July 1, 2020

As contractors throughout the U.S. are getting back to work, there are new protocols and provisions in place. Protocols at many companies include screening employees, subcontractors and visitors for COVID-19-related symptoms before they enter the job site, according to www.constructiondive.com.

Screenings can include filling out a health form daily; taking temperatures; scanning a job-specific QR code before being allowed to enter the job site; and flagging workers who are displaying symptoms or who have had contact with someone who has symptoms. However, attorney Rick Blystone, labor and employment partner at Cotney Construction Law, Tampa, Fla., says contractors should be aware of legal implications regarding health screenings on job sites.

Although the Americans with Disabilities Act prohibits employers from questioning employees about their health, since the pandemic began, the Equal Employment Opportunity Commission has cited examples where it may be appropriate for a company to conduct medical screenings of employees to ensure the health and safety of others in the workplace, including:

  • 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 whether 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

Still, Blystone says employers must be careful not to violate their employees’ rights under state, federal or local laws. In addition, EEOC says a COVID-19 antibody test constitutes a medical examination under the ADA, and because it doesn’t meet the law’s “job related and consistent with business necessity” standard, employers subject to the ADA cannot require the test as a condition workers must meet before returning to work. COVID-19 tests and temperature checks also constitute medical exams, but EEOC says they satisfy that threshold.

To avoid privacy issues, contractors should not reveal the identity of any employees who test positive for COVID-19. Instead, they should disclose to employees that a co-worker or visitor has tested positive and implement appropriate safety protocols. An exception would be 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.

Blystone recommends employees’ temperatures be taken as privately as possible prior to the start of the workday by a person or administrator who is trained regarding privacy issues. Also, contractors must keep medical information separate from regular personnel files, on separate forms and in separate files protected by a lock and key or password.

Tags: Legal

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