With many employees returning to the work place after months of furloughs or allowing employees to work from home, employers have a vested interest in keeping the workplace safe and minimizing exposure to COVID-19. As such, employers are actively screening employees before they are allowed to enter the workplace. Although such screening is allowed under both Americans with Disabilities Act (ADA) and Occupational Safety and Health Act (OSHA) guidelines, there are record retention, and wage and hour requirements that employers must keep in mind.
Employers are not required to make a record of temperature readings. Rather, temperature readings can be done in real time without the employer making a record. However, if readings are recorded, it may invoke the record retention requirements of both ADA and OSHA regulations.
- ADA: If records are created by anyone in regards to COVID-19 temperature checks, the ADA requirement for maintaining medical information confidentially will apply to such records. This includes a record retention requirement of one year.
- OSHA: If records are created by a physician, nurse or other health care professional in regards to COVID-19, recorded temperature checks would be considered medical records under OSHA’s “Employee Exposure and Medical Records” standard and would require retention for the duration of an employee’s employment PLUS 30 years.
In order to maintain confidentiality of the records, employers should maintain temperature reading records separate from employees’ personnel records.
WAGE & HOUR
Employers requiring temperature screenings may be required to compensate employees for time spent for the screening including travel and wait times. Whether an employer must provide compensation to an employee for screening or wait time related to screening is a very fact specific determination and will depend partly on if the employee is exempt or non-exempt. However, there are some important points to consider in relation to wage and hour requirements when implementing screening protocols:
- Is the screening part of the employees’ “principal activity”? Is the screening required in order for the employee to safely perform his/her job?
- Is screening wait time a “preliminary” or “postliminary” activity? Or is the screening considered part of the employees’ work day?
- How does screening relate to applicable state laws? What are the applicable current judicial decisions in the employers’ states of operation?
Employers may also want to revisit their current exempt and non-exempt employee classifications in light of any changes the employer has made in the workweek expectations related to COVID-19.
Employers would be well served to determine their record keeping strategy for temperature screens and testing related to COVID-19 and review employee classifications and testing requirements for wage and hour considerations. Employers should consult with their legal counsel regarding testing and record retention policies to ensure compliance with federal and state law.