New York State continues to publish guidance for employers on mandatory health screening during the Coronavirus (“COVID-19”) pandemic. Industry-specific guidance is being made available in phases as businesses are permitted to reopen. All available guidance requires employers to conduct mandatory daily health screening of their employees and essential visitors. See the current NY Forward Guidance here.
Each business or entity, including those that have been designated as essential under Empire State Development’s Essential Business Guidance, must develop a written Safety Plan outlining how its workplace will prevent the spread of COVID-19. A business may complete the NY Forward Safety Plan Template to fulfill this requirement, or may develop its own Safety Plan. The completed plan does not need to be submitted to a state agency for approval, but must be retained on the premises of the business and must made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection. One component of the Safety Plan includes mandatory health screening for employees and for essential visitors, which is addressed at Part III (a) of the template.
This memo is intended to provide a summary of the New York State guidance related to such health screening and, in particular, temperature checks. Employers should implement mandatory health screening on a daily basis for all employees and essential visitors. Based on New York State’s current guidance, this screening process, at a minimum, should include the following:
1.) Screening Questionnaire
- Completed before an employee begins work each day and for essential visitors asking about:
(1) COVID-19 symptoms in the past 14 days;
(2) positive COVID-19 test in the past 14 days; and
(3) close contact with confirmed or suspected COVID-19 case
in the past 14 days.
- Responses must be reviewed every day and such review must be documented.
2.) Safety Protocols
- Screeners should be trained by employer-identified individuals familiar with CDC, DOH, and OSHA protocols.
- Ensure that any personnel performing screening activities, including temperature checks, are appropriately protected from exposure to potentially infectious employees or visitors entering the property.
- Screeners should be provided and wear appropriate, employer-provided PPE including, at a minimum, a face mask, and may include gloves, a gown, and/or a face shield.
- Screening should be coordinated to prevent employees or visitors from intermingling in close contact with each other prior to completion of the screening.
- If space and building configuration allows, screen individuals at or near the building entrance to minimize the impact in case of an individual suspected or confirmed to have COVID-19.
- Allow for adequate social distancing while individuals queue for screening and/or building entry.
3.) Temperature Checks
- In addition to the screening questionnaire, daily temperature checks may be conducted per the U.S. Equal Employment Opportunity Commission (EEOC) or DOH guidelines. Note that temperature checks are permitted – but not required.
- Employers (as responsible parties for screening) are prohibited from keeping records of employee health data (e.g. temperature data).
- Screening practices may be performed remotely (e.g. by telephone or electronic survey), before the employee or visitor reports to the office, to the extent possible; or may be performed on site.
- Use contactless thermal cameras in building entrances, in coordination with building management, to identify potentially symptomatic visitors and direct them to a secondary screening area to complete a follow-on screening.
The EEOC’s Guidance on COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws also permits temperature screening during the pandemic. Generally, measuring an employee’s body temperature is a medical examination. The EEOC has advised that because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure an employee’s body temperature.
Based on the available guidance as of this memorandum, employers may implement daily temperature checks (in accordance with the NYS, EEOC and DOH guidelines) as part of the mandatory daily health screening process for employees. If you have any questions, please do not hesitate to contact David R. Rothfeld, Lois M. Traub, Alexander Soric, Jennifer Schmalz, Robert L. Sacks, Jaclyn Ruocco, Joseph Tangredi, or Brian Polivy.
This memo is provided for informational purposes only. It is not intended as legal advice and readers should consult counsel to discuss how these matters relate to their individual circumstances.