COVID-19 Response Apps

Employer Checklist for Re-opening

Employers continue to respond to the rapidly evolving operational and legal landscape presented by the COVID-19 outbreak. As the economic effects of the COVID response prompt more in the public and private sector to explore ways to return to “business as usual,” employers are now facing new questions over whether and how to reintegrate their workforces – in a safe, efficient, and legally compliant manner. Regardless of how close employers are to opening their doors, all would benefit from proactively planning for how to do so in the coming weeks and beyond. We have thus provided below a checklist of issues to consider when evaluating reintegration plans, with a special emphasis on health screenings that a growing number of government guidance expects employers to implement.

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Employer Checklist for Re-opening

1. Consider whether and how to implement reintegration screening.

Determine whether testing is feasible for your work environment. (Are tests available in adequate quantities? Are there on-site health care professionals to administer tests? Are laboratories available to process tests?)

Determine who will be tested and under what circumstances (e.g., employees, essential workers, asymptomatic employees, visitors).

Specify the types of testing that will be utilized (e.g., temperature screening or other more invasive screening).

Identify and implement the testing method and procedure. Who will conduct the test and what testing mechanism will be used to achieve accuracy and confidentiality?

Determine whether test results will be timely and sufficiently accurate to meaningfully inform workplace decisions. Further, can tests be administered.

2. Consider general privacy and security issues associated with reintegration screenings.

Determine what personal information will be necessary to collect as part of a workforce reintegration plan.

Explore potential ways to minimize or even anonymize this information.

Determine who needs access to this information and for how long.

Establish a regular cadence to revisit these foundational issues to account for a quickly evolving environment.

Identify relevant regulatory requirements, including applicable state, federal, and international laws.

Identify any discrepancies between the expected use and protection of workforce reintegration information and what privacy and security representations have already been made, such as those under employee agreements.

Anticipate potentially sharing reintegration information with third parties, including federal, state, and local governments, trade associations, business partners, and insurers.

Consider how to best communicate (or reiterate) how reintegration information will be used.

Consider practical operational steps to support a reintegration privacy and security program, such as private entry screenings.

Understand any reporting obligations to public health authorities and whether it is permissible to withhold employee screening information.

Consider whether and how reintegration screenings intersect with HIPAA specifically.

Verify that screening information is being collected and maintained separately from an employer sponsored group health plan.

Consider the source of the testing information. There may be limitations on access to data for tests conducted by clinicians and labs.

Consider whether employee authorization is required under HIPAA.

If you are considering access to data collected by apps that are being developed to track cases and support reintegration, understand if the data is being collected on behalf of the employee, a HIPAA covered entity, or a public health authority.

3. Consider how evolving federal and state guidance may limit permissible screenings.

Confirm that the proposed reintegration screening plan complies with the Americans with Disabilities Act’s limitations pertaining to employee “medical examinations.” (See EEOC Pandemic Preparedness in the Workplace Guidance)

Verify that the reintegration screening plan complies with federal and state discrimination laws and guidance (e.g., that the screening plan does not target or have an unlawful disparate impact on employees based on EEO or other prohibited classifications).

Establish a protocol for storing and maintaining confidential medical records that complies with applicable confidentiality and recordkeeping obligations imposed by federal and state employment laws/guidance.

Ensure that employment decisions made based on testing and screening results are not unlawfully discriminatory or retaliatory and that employers continue to engage in the ADA interactive process and accommodate employees where required.

Determine whether employees who undergo mandated reintegration screening procedures must be compensated under applicable federal and state wage and hour laws for time spent undergoing such procedures.

4. Regularly evaluate changing federal, state, and local guidance.

If using testing, monitor the compliance status of the test and the test’s manufacturer. (Has FDA issued or withdrawn an emergency use authorization or other marketing approval for the test?)

Monitor reporting requirements for test results.

5. Proactively consider how to mitigate legal exposure in light of an evolving standard of care.

Develop and follow an infectious disease preparedness plan with engagement of key stakeholders.

Select and implement appropriate infectious disease controls, publicize them widely, and monitor compliance.

Provide full disclosures of risks after robust assessments tailored to your business processes.

Use technology creatively as a tool to develop a record of engagement on safety and health issues.

Maintain flexibility to adapt business decisions this rapidly evolving situation, recognizing ongoing changes to the data and science.

Pay renewed attention to indemnity, release and hold harmless provisions in contracts.

Monitor government advisories and adjust business practices, as needed.