How to Prepare for the Aftermath of COVID-19

by Steven M. Harris, Esq. •

Employers are permitted to test employees entering the workplace for COVID-19 because an individual with the virus poses a direct threat to the health of others, especially in a healthcare setting where patient safety is critical.

It’s worth noting that although measuring an employee’s body temperature is considered a medical examination, the CDC and many state/local health authorities have authorized or recommended that employers monitor employees’ body temperatures as a safeguard to reduce the spread of the virus.

Employers who decide to provide testing to employees should bear the cost of the tests. Additionally, the ADA requires employers to ensure that tests are accurate and reliable. Employers should review current guidance from the FDA about what tests are considered accurate. For example, serology tests have faced scrutiny from the medical community, leading the FDA to revise its Emergency Use Authorization (EUA) policy and to subsequently publish a list comparing antibody test confidence levels.

Patient Considerations

Screening patients for COVID-19 can be similar to protocols implemented for screening employees. However, testing provided to patients is governed by the Coronavirus Aid, Relief, and Economic Security (CARES) Act in addition to other federal and state laws and regulations, rather than by EEOC guidance. Providers may also be required to perform screening or testing of patients pursuant to executive orders signed by governors in certain states.

Providers should monitor the CDC guidelines and state/local public health orders relating to patient-specific screening or testing, which generally will indicate what symptoms to look for, how to prioritize medical treatment or testing, and which social distancing or isolation guidelines are recommended based on levels of community spread and reported cases in a geographic area.

Providers should consider the following screening methods for patients:

  • Pre-appointment screening: Set up phone application symptom checks or telephone calls prior to patient appointments to verify that COVID-19-related or similar symptoms are not present before permitting patients to come on site.
  • On-site temperature checks: Check patients for fevers at a separate checkpoint, outside or in the waiting room, on arrival. If a fever is present, the patient’s appointment should be rescheduled (so long as the patient is not experiencing a healthcare emergency) after a 14-day period to reduce the risk of transmission. Prior to the date of the rescheduled appointment, the pre-appointment screening should be conducted again and the patient should undergo another on-site temperature check at the time of the appointment.
  • On-site testing or referrals: For the remainder of the COVID-19 public health emergency, certain COVID-19 tests can be performed in any patient care setting that operates under a Clinical Laboratory Improvement Amendments (CLIA) Certificate of Waiver. If a healthcare professional isn’t authorized to perform such tests, they must refer patients to an appropriate testing location. Under the CARES Act, COVID-19 testing and any related treatment must be covered without any patient financial responsibility and without prior authorizations. Providers should consider what types of tests to use (e.g., PCR, antigen, or antibody) and the accuracy or confidence levels of those tests.

The FDA clarified that when it grants an EUA for a point-of-care COVID-19 test, CLIA is waived for that test. A point-of-care setting for an EUA test may include physician offices, urgent care, outreach clinics, pharmacies, and temporary patient care settings, as long as appropriately trained personnel are available to perform such tests.

To apply for a CLIA certificate, a provider must submit a CMS-116 application form to the CLIA contact in the state where testing will be performed.