When employees return to the workplace, your organization must follow legal requirements for keeping the workplace safe, including social distancing, mask wearing, and new sanitizing protocols. But before employees set foot in the workplace, should they also be required to get tested for COVID-19? Now that a vaccine is ready, should you require them to get vaccinated? 

Answering these questions requires understanding the existing laws and staying up-to-date with them as they change. It also requires making sure your organization’s screening policies and practices are aligned with organizational goals and employees’ needs. Here’s what you need to know to help comply with the law and protect your employees, patients, and visitors as the COVID-19 climate evolves.

Which COVID-19 Screening Methods Make Sense in Your Workplace?

Before deciding if COVID-19 testing and vaccination make sense for your organization, it’s necessary to understand the different employee screening methods. Although performing a nasal swab test can diagnose COVID-19, monitoring for fever and other symptoms can help identify individuals who should undergo diagnostic testing before entering the workplace. 

The various ways to screen and test for COVID-19 include the following:

  • Body temperature checks: Checking temperatures before individuals enter the workplace.
  • Individual survey monitoring: Asking individuals if they have experienced any of the commonly known symptoms of coronavirus before they enter the workplace. 
  • COVID-19 virus testing: Conducting diagnostic testing for evidence of existing coronavirus infection.
  • COVID-19 antibody testing: Testing for evidence of coronavirus antibodies following a coronavirus infection.
  • COVID-19 vaccination (when widely available): Requiring employees to get vaccinated.

There are many reasons your organization may want to pursue one or more of the COVID-19 employee screening activities. The top reason is the protection of employees and others from the spread of a highly contagious disease. Other reasons include:

  • You want to minimize the lawsuits employees might bring if they believe they contracted COVID-19 in the workplace, or if they are at a high risk of doing so.
  • You want to follow best practices for your industry.
  • There has been a previous outbreak in your workplace and you want to improve your employee screening practices.

Deciding when and how to screen employees depends on many factors, including workplace risks and budget. Before you proceed, you must first take into account evolving laws for testing and vaccination.

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Laws and Guidance for Workplace COVID-19 Testing and Vaccination 

Many government agencies have provided guidance to employers about protecting employees and keeping the workplace safe from the spread of COVID-19. Key guidance and laws originate from the following sources:

Centers for Disease Control and Prevention (CDC)

The CDC recommends COVID-19 screening should be “incorporated as part of a comprehensive approach to reducing transmission in the workplace.” Most of the COVID-19 testing and screening requirements today are designed to conform to CDC recommendations, which include the following activities:

  • COVID-19 diagnostic testing for employees
  • Symptom screening
  • Contact tracing and employee notification of possible exposure to COVID-19 in the workplace

Americans with Disabilities Act (ADA)

The ADA, enforced by the Equal Employment Opportunity Commission (EEOC), provides protections to employees with disabilities. The ADA typically prohibits employers from excluding disabled individuals from the workplace, including individuals with diseases such as COVID-19. However, due to the public health implications of COVID-19, there are extra steps employers are permitted to take in the workplace without violating the ADA

Under the ADA, employers are permitted to conduct the following screening and testing activities:

  • Take employee temperatures
  • Ask employees who have called in sick if they have COVID-19 symptoms
  • Require employees to take a COVID-19 diagnostic test
  • Require employees with COVID-19 symptoms to stay out of the workplace
  • Require employees returning to work after illness to provide a doctor’s note stating their fitness to work
  • Screen job applicants for symptoms of COVID-19 after making a conditional job offer

Though employers may take actions not normally permitted by the ADA, most notably, required testing and refusal to allow COVID-19 positive and symptomatic employees into the workplace, there remain some activities prohibited by the ADA. The ADA does not allow employers to require COVID-19 antibody testing, in large part because the CDC does not recommend antibody testing and cautions there are still many unanswered questions about coronavirus immunity. As more becomes known about immunity and the impact of vaccination, it is likely the CDC and ADA will issue further guidance about whether employers may require antibody testing and vaccination in the future.

Lastly, to be fully compliant with the ADA, employers should maintain all information about employee illness as a confidential medical record. They may not disclose the name of any employee testing positive because it is deemed confidential information under the ADA.

Equal Employment Opportunity Commission (EEOC)

In addition to enforcing the ADA, the EEOC also requires employers to apply all COVID-19 screening without discriminating. In other words, testing and screening practices must be applied equally among employees and candidates and not according to national origin, race, gender, or other prohibited bases. 

The EEOC also encourages employers to consult guidance from the Food and Drug Administration (FDA) about what constitutes safe and accurate coronavirus testing. For example, testing methods vary according to the incidence of false-positive and false-negative test results.

Genetic Information Nondiscrimination Act (GINA) 

GINA prevents employers from asking employees if any family members have been diagnosed with COVID-19 or are having symptoms. However, GINA does not prohibit an employer from asking employees whether they have had contact with anyone who is symptomatic or diagnosed with COVID-19.

Occupational Safety and Health Administration (OSHA) 

OSHA has published guidelines for workplace protections, which align with CDC recommendations and ADA requirements. The OSHA guidelines classify jobs according to low, medium, or high risk of COVID-19 exposure, and provide recommendations for protecting employees in each category. For example, OSHA recommends extensive personal protective equipment (PPE) and medical monitoring for employees in high-risk jobs, such as those with contact with patients and the general public, but they do not recommend the same precautions for individuals in low-risk jobs with minimal contact with others.

Tips for Implementing COVID-19 Screening in Your Organization

When deciding whether to require COVID-19 testing and vaccination in your workplace, you’ll need to carefully consider applicable laws and what makes sense for your organization. Depending on your workforce and the risk level of certain job categories, you may make some types of screening mandatory and some voluntary. Take the following steps to develop a screening program that works for your organization.

Understand What Actions Are Permitted

There are many laws governing workplace COVID-19 screening. Use the chart below as an at-a-glance reminder of the screening actions currently permitted in the workplace:


Workplace COVID-19 Screening Action


Legally Allowable
(Y/N)

Taking employee temperatures

Yes

Asking employees who have called in sick if they have COVID-19 symptoms or if they have been in contact with anyone with COVID-19 or who is symptomatic

Yes

Asking employees if any family members have been diagnosed with COVID-19 or are having symptoms

No

Requiring employees with COVID-19 symptoms to stay home

Yes

Requiring employees to take a COVID-19 diagnostic test

Yes

Requiring employees to take a COVID-19 antibody test

No

Requiring employees returning to work after illness to provide a doctor’s note stating their fitness to work

Yes

Sharing the names of employees who have tested positive for COVID-19

No

Screening job applicants for symptoms of COVID-19 after making a conditional job offer

Yes

Requiring employees to be vaccinated for COVID-19

To be determined

 

Develop a Comprehensive Policy 

Make sure you have a policy explaining when and how your organization will screen employees and job applicants for COVID-19. Though you may legally require temperature checks, symptom tracking, and COVID-19 diagnostic testing, you should select from these options based on what is most practical for your workplace. No matter the screening activities you choose to conduct, having a comprehensive policy in place will maintain consistency and ongoing compliance in screening practices.

Communicate Allowable Exemptions 

Recent polls suggest not all Americans are willing to get a vaccine when one is available. A September 2020 survey conducted by the Pew Research Center found only half (51 percent) would choose to get the vaccine if available, a drop from 72 percent who said they would get the vaccine in May 2020. Concerns about vaccine side effects, effectiveness, and the relative speed of the approval process were cited as top factors. 

Given the variations in views about the COVID-19 vaccine, you’ll need to be prepared to answer questions about who will be exempt from any workplace vaccination requirements. Some of the factors leading to exemption requests may include:

  • Religious or ethical beliefs: Employees may request an exemption based on religious or other constraints.
  • Employee disability claims: Employees with allergic reactions or adverse side effects could bring workers compensation claims.
  • Unionized employees: Some collective bargaining agreements may not allow mandatory vaccination without union consent.

Partner with a Reputable Background Screening Provider 

Your background screening partner can help you develop a screening program consistent with applicable law, and facilitate COVID-19 testing for employees and applicants in line with your policy. Instead of trying to navigate compliance requirements and best practices yourself, you can rely on your screening provider to help you with the following:

  • Following requirements for candidate and employee disclosure and authorization
  • Maintaining ADA-compliant COVID-19 screening records
  • Updating your existing health screening practices to meet legal requirements
  • Staying abreast of the evolving compliance landscape as the pandemic continues

Optimize Employee Screening in Your Organization

Employment screening today is impacted by a range of laws, and with the evolving COVID-19 situation, those laws are constantly changing. However, deciding the mix of COVID-19 testing and vaccination requirements for your organization isn’t just a matter of understanding applicable laws. You also need to decide which screening practices fit your workplace, and how your health screening activities will be incorporated into your broader background screening program. 

For more ideas on how to improve the overall effectiveness of your employee health and background screening program, check out our Interactive Assessment tool.

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Information contained here is intended only as a service to inform or be educational in nature. Nothing herein should ever be construed as legal advice or opinion, nor as the offer of such. Corporate Screening makes no representations about whether the use of this information or documents would ensure legal compliance by the end user with all applicable federal, state, and local requirements. You are strongly advised to consult with your own legal or other counsel regarding the use of background screening information, forms, and processes.