Following Governor Sisolak’s May 7, 2020 announcement to begin Phase 1 of the Nevada United Roadmap to Recovery, many businesses were permitted to reopen under certain restrictions. The State of Nevada subsequently issued industry specific guidance on those restrictions for the businesses permitted to reopen. Notably, for every industry it is either mandatory or suggested that employers conduct pre-shift screenings or assessments of their employees.
As these types of screenings were previously prohibited under the Americans with Disabilities Act (“ADA”), many employers are having to adjust to this new practice. Generally, the ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” However, at the outset of the COVID-19 pandemic the Equal Employment Opportunity Commission (“EEOC”) stated that due to the current circumstances of the pandemic, employers may take steps to determine if employees entering the workplace have COVID-19. This is because an individual with the virus will pose a direct threat to the health of others.
Accordingly, employers are now permitted to ask employees if they are experiencing symptoms of COVID-19 and measure employees’ body temperature without running afoul of the ADA.
In conducting pre-shift screenings and assessments, employers can either conduct the screenings themselves or have the employee do a self-assessment prior to the start of their shift. If the employer opts to conduct the screening, the employer can choose to have a person in house conduct the screenings, such as a supervisor or a manager, or bring in an outside third-party. The employer should ensure that the individual conducting the screening is provided the appropriate level of personal protective equipment (PPE), is properly trained, and adheres to social distancing guidelines.
Further, when conducting pre-shift screenings or assessments it is important to properly document the results of those exams. Sample forms that can be used to complete the screenings and assessments can be found on our Member Portal.
Further, employers must keep the results confidential. Under the ADA, all medical information about a particular employee must be stored separately from the employee’s personnel file, thus limiting access to this confidential information. The EEOC has stated that “[a]n employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.”
If you have any questions or concerns regarding the implementation of pre-shift screenings or assessments, please contact the Nevada Association of Employers. Our team can provide insight and guidance on how to properly implement these procedures while maintaining compliance with the ADA.
