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EEOC OFFERS GUIDANCE ON COVID-19 EMPLOYEE TESTING

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EEOC OFFERS GUIDANCE ON COVID-19 EMPLOYEE TESTING

As employers continue to grapple with maintaining their business operations and as others begin to look forward to resuming their operations, there are many questions which arise as to the safety of the employees, customers and others entering the workplace. To address some of these concerns the Equal Employment Opportunity Commission (EEOC) published guidance on a variety of topics in relation to staying within the legal parameters of the Americans with Disabilities Act and other EEO laws.

The EEOC issued guidance is on its FAQ page entitled ”What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” which can be found at this link:

https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

Portions of the FAQ guidance are summarized below:
SECTION A – DISABILITY-RELATED INQUIRIES AND MEDICAL EXAMS
A.1. How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic? (3/17/20)
Employers may ask employees if they are experiencing symptoms of the pandemic virus including symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
A.2. May an employer ask employees only about the COVID-19 symptoms EEOC has identified or may it ask about any symptoms identified by public health authorities as associated with COVID-19? (4/9/20)

Employers should rely on the CDC, other public health authorities, and reputable medical sources for guidance on emerging symptoms associated with the disease to determine whether they would pose a direct threat to health in the workplace. For example, additional symptoms beyond fever or cough may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting.

A.3. When may an employer take the temperature of employees during the pandemic? (3/17/20)

Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

A.5. When employees return to work, does the ADA allow employers to require a doctor’s note certifying fitness for duty? (3/17/20)

Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees.

A.6.  May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

Any mandatory medical test of employees be “job related and consistent with business necessity.” Employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

As to the testing protocol, employers need to be cautious and understand that there is the potential for false-positives and other considerations relating to testing. Employers should review the guidance from the FDA, the CDC or other public health authorities, and check for updates. It is important to note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Another important section to review as businesses begin to plan for re-opening is section G which, in part, is summarized below.

SECTION G- RETURN TO WORK
G.1. As stay-at-home orders and other restrictions are modified or lifted, how will employers know what steps they can take consistent with the ADA to screen employees for COVID-19 when entering the workplace? (4/17/20)
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.

For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace.

Employers should make sure not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion.

REMAINING ISSUES
One significant question that remains open is whether employees can be required to obtain their own test, at their own expense, or does the employer have to provide and pay for the testing prior to employees returning to work?
The guidance also addresses issues relating to the confidentiality of the medical information obtained when testing employees, including taking their temperatures, along with guidance on hiring, on-boarding and providing reasonable accommodations to employees during the pandemic.

All EEOC materials related to COVID-19 can be found on their website:   https://www.eeoc.gov/coronavirus

IMPORTANT NOTE AND DISCLAIMER:

Please note, the above summary is not an exhaustive explanation of the law on these issues. This newsletter is provided solely for informational purposes and is subject to change based on newly released and developing information. This newsletter should not be construed or interpreted as providing legal advice related to any specific matter.

The Firm is actively monitoring these changes and are available to provide any advice, guidance, and recommendations as we navigate these trying times together. The Firm is operational and available to address your concerns and questions. Should you have any questions or concerns, please feel free to contact me.


This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2020.