How to Develop New Policies in Accordance with Federal, State & Local Regulations

Now that many businesses are reopening, the guidance from the Federal Government is clear that some practices that may have seemed invasive and crossing the employer-employee privacy line are acceptable in order to continue to stop the spread of the Coronavirus.  In March, the Equal Employment Opportunity Commission (EEOC) gave employers the okay to take temperatures at work, but that doesn’t mean that businesses can throw away their employee’s civil rights and right to health-related privacy.

The guidance is clear that employers must “develop and implement appropriate policies, in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices, regarding:

• Social distancing and protective equipment
• Temperature checks
• Sanitation
• Use and disinfection of common and high-traffic areas
• Business travel

When it comes to taking employees’ temperatures, policies should be in place that ensure each employee’s privacy, civil rights, and health information are protected.  The Society for Human Resources Management (SHRM) recommends that employers consider these questions when creating policies:

• How do you select an employee to administer temperature-taking? (Asking for a volunteer is the best practice)
• How will that employee be protected from the virus?
• How will the privacy of employees be protected?
• How will this action affect employee morale?

EEOC legal professionals also recommend that employers avoid having employees lining up waiting for their temperature to be taken; the process should be done as privately as possible to keep the identity of any employees with fevers confidential.  In April , U.S. Centers for Diseases Control and Prevention (CDC) said, “Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.”

As always, employee medical information is treated differently than HR & personnel info.  Title I of the ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a ‘confidential medical record.’ 29 C.F.R. §1630.14(b)(1).