The Employee Return to Work & COVID-19 Screening FAQs

The Employee Return to Work & COVID-19 Screening FAQs

The New Jersey Department of Education has published “The Road Back”, which provides re-opening guidance for school districts

The New Jersey Department of Education has released guidance which sets forth the following minimum requirements:

• School districts must adopt a policy for screening students and employees upon arrival for symptoms and history of exposure. Policies must include the following:
• Staff must visually check students for symptoms upon arrival (which may include temperature checks) and/or confirm with families that students are free of COVID-19 symptoms.
• Health checks must be conducted safely and respectfully, and in accordance with any applicable privacy laws and regulations.
• Results must be documented when signs/symptoms of COVID-19 are observed.
• Any screening policy must take into account students with disabilities and accommodations that may be needed in the screening process for those students

Source: The Road Back, NJ DOE, pg. 25

What are we advising?

Temperature checks

We are currently advising against implementing temperature checks as a screening method due to practical and legal concerns.  If your district elects to proceed with temperature screening, a variety of legal issues may arise including, but not limited to, the confidentiality of employee health data and adherence to social distancing protocols.

Please comply with the CDC COVID-19 Workplace Guidelines which lay out procedures for both:

• Asking employees to take their own temperatures before coming to the workplace or upon arriving at the workplace; and
• Taking employees’ temperatures upon arriving at the workplace.

While we recommend against adopting a policy requiring employee temperature checks due to the concerns noted above, such measures are a valid and acceptable method for employee screening.  Should Districts elect to adopt such a policy, it is imperative that employee confidentiality be maintained. Employees’ temperatures should not be announced or seen by anyone other than the individual(s) authorized to conduct the screening.  Employees’ temperatures are medical records and should be kept separately from personnel files.

Any District employee selected to conduct temperature screenings of other employees should be provided with training regarding the proper handling and maintenance of confidential medical information.

If the District elects to utilize a third-party vendor to perform temperature screenings, including mobile applications which allow employees to self-screen, please be aware that issues may arise due to the vendor’s policies with respect to maintaining and sharing employee data. It is recommended that a thorough review of all vendor agreements and applicable policies be conducted before a vendor is selected.

Health Screening Form

If a District elects not to implement temperature screenings, employees may instead be required to answer questions regarding their current health status and provide updated responses as needed.  Screening forms should require the employee to respond to the following:

• Whether or not the employee is currently experiencing, or has experienced in the past 24-48 hours, any COVID 19 symptoms including:

1. Fever or feeling feverish (chills, sweating)
2. New cough
3. Difficulty breathing
4. Sore throat
5. Muscle aches or body aches
6. Vomiting or diarrhea
7. New loss of taste or smell

• In the past 14 days has the employee been in close proximity to anyone who was experienced any of the above symptoms or has experienced any of the above symptoms since your contact?
• In the past 14 days, has the employee been in close proximity to anyone who has tested positive for COVID-19?
• In the past 14 days, has the employee travelled to any of the states included on the travel advisory list issued by Governor Murphy, as periodically amended.

Employees should be advised that they are required to report a change in the response to any of the questions noted above which may then result in a requirement that they quarantine for a period of 14 days and/or submit to COVID-19 testing.

Mandatory Testing

May districts require that staff get tested for COVID-19?

Yes.  Per the Equal Employment Opportunity Commission’s guidelines, Districts may require that staff get tested so long as requiring the test is job-related and consistent with business necessity.  Given the current state of the COVID-19 pandemic, COVID-19 poses a direct threat to the health of others in the workplace, therefore, requiring a test is job-related and consistent with business necessity.

While it is not recommended that employees generally be required to submit to testing prior to returning to work, it is recommended that employees submit to such testing in the following circumstances:

• Following a period of leave to care for a family member or other individual who has tested positive for COVID-19
• Following any absence as a result of personally experiencing any symptoms of COVID-19
• Following the conclusion of a mandatory 14-day quarantine period resulting from exposure to any individual who has tested positive for COVID-19
• Following the conclusion of a mandatory 14-day quarantine period resulting from travel to any state included on the travel advisory list issued by Governor Murphy, as periodically amended.

Please be advised that employers may not require employees to take antibody tests before returning to work under any circumstances.

Masks and Protective Equipment

May Districts require employees to wear masks for the entire workday?

Yes. “Schools and districts must allow for social distancing to the maximum extent possible. When social distancing is difficult or impossible, face coverings are required, and face coverings are always required for visitors and staff unless it will inhibit the individual’s health. School districts must also minimize use of shared objects, ensure indoor facilities have adequate ventilation, prepare and maintain hand sanitizing stations, and ensure students wash hands frequently.” The Road Back: Restart and Recovery Plan for Education, NJ Department of Education, June 2020.

One of the very few explicit requirements included by the Department of Education in the reopening guidance is the requirement that all staff wear face coverings, unless prevented from doing so as a result of a health condition.  If an employee claims a medical exemption to the face-covering requirement, the employee should be required to submit a medical certification attesting to the specific medical condition and diagnosis that makes compliance a health risk.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Sarah Gober, Caitlin Dettmer, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.