Everything Retailers Should Know About COVID-19 Self-Assessments
Interested in Implementing a Coronavirus Screening Tool for Conducting COVID-19 Self-Assessments? Here's What to Keep In Mind
The COVID-19 crisis has upended the entire retail industry. Many questions remain unanswered, and retailers are struggling with how to adjust. Guidance is limited, and rules and regulations often differ across regions, and are changing rapidly. But one thing is clear: screening employees for the coronavirus and possible symptoms through COVID-19 self-assessments is important to preventing the spread in-store.
If you’re reading this, you’re probably in the midst of reopening stores, but have some questions about how to do so safely (and legally).
You’re not alone.
Here are some common questions retailers have about using a self-assessment tool, and what’s legal and required under select federal laws.
Everything Retailers Should Know About COVID-19 Self-Assessments and the Law Around Conducting Surveys
Can Retailers Ask Employees If They Have COVID-19 Symptoms?
The Centers for Disease Control and Prevention (CDC) advises employers to “consider conducting daily in-person or virtual health checks (e.g., symptom and/or temperature screening) before [employees] enter” a workplace.
According to the Equal Employment Opportunity Commission (EEOC), employers are allowed to ask store associates and other retail employees if they’re experiencing any symptoms of COVID-19, as long as they comply with Americans with Disabilities Act (ADA) regulations and standards.
“As always, employers should consider that applicable state law may be less permissive than what the EEOC currently allows,” says Sidley Austin LLP.
The EEOC also recommends referring to the CDC, public health authorities, and reputable medical sources for guidance on new symptoms as the COVID-19 crisis evolves.
“These sources may guide employers when choosing questions to ask employees to determine whether they would pose a direct threat to health in the workplace,” the EEOC says in their Technical Assistance Questions and Answers section of their website.
What Personal Information Can Be Collected?
Highly sensitive health information—such as any employee statements on whether or not they have COVID-19 or symptoms associated with it—that’s obtained by questioning an employee about their health, whether in-person or digitally, is considered confidential information. According to MLT Aikins LLP, failure to store such information securely can result in “significant regulatory, financial, reputational, and other consequences.”
The ADA requires all medical information is stored separately from an employee’s personnel files and that companies follow any state law requirements regarding the collection, use, and storage of such information.
Consult local regulatory agencies for any possible requirements on guidelines. And, as Sidley LLP recommends, play it safe by following any existing confidential protocols that are already in place.
Retailers should also tell employees what personal information the company is collecting and its purpose when conducting any COVID-19 screenings or assessments. Improper collection of personal information, or doing so without consent, could result in future legal problems.
Are Retailers Legally Allowed to Screen Possible Job Applicants for COVID-19 Symptoms?
Many retailers are reopening their doors, and essential retailers continue to expand their headcount to meet staffing needs.
But the coronavirus still rages on. According to the EEOC, retailers can (and should) screen potential candidates for symptoms of COVID-19 after a conditional job offer. In the event such an applicant has COVID-19 or symptoms associated with it, retailers should delay the start date of a job and prevent the candidate from entering the workplace, per CDC guidelines.
Why Should Retailers Pre-Screen Employees With a Self-Assessment Tool Before Entering the Workplace?
Speaking to Independent Retailer, Thomas Fazio, Partner at Blodnick Fazio & Clark, warned that retailers who may not screen employees before entering a store could expose themselves to certain liabilities.
“An employee who doesn’t feel safe returning to work once a retail location reopens may decide to pursue litigation to replace their lost income from not working,” he says. “[And] an employee who does return to work may not feel the employer has done enough to keep them safe.”
On top of that, Fazio says customers may also feel a business isn’t doing enough to protect them from the possible risk of infection by allowing employees who weren’t properly screened—either through a self-assessment or temperature check—to enter the store. Doing so can hurt brand confidence and increase the likelihood of being sued.
Final Thoughts On COVID-19 Self-Assessments and Conducting Surveys
Despite stores reopening, until a vaccine is created and tested, retail won’t return to normal.
To help employees adjust, Mayer Brown LLP recommends communicating with store teams regularly to put employee’s minds at ease and dispel any rumors or misinformation.
“Undergoing daily temperature tests or other health screens before entering a workplace is unprecedented for most employees,” the law firm says, “so training them about workplace changes and setting expectations in advance of their arrival may facilitate a smoother transition for many employees once they return to the workplace.”
Mayer Brown LLP also warns employers that, if rules and regulations don’t get followed, the COVID-19 crisis could extend even longer.
“Employers need to be mindful of warnings by public health officials that there may be spikes in COVID-19 cases,” they say. “Careful planning by employers now may help to mitigate problems and risks in the unfortunate event of another shutdown in the months to come.”