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EEOC: EMPLOYERS CAN SCREEN FOR COVID-19

The Equal Employment Opportunity Commission (EEOC) updated its guidance on April 23 on the Americans with Disabilities Act (ADA) and coronavirus, explaining that employers may screen employees for COVID-19. Any mandatory medical test must be job-related and consistent with business necessity, the EEOC explained.

“Applying this standard to the current circumstances of the pandemic, 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,” the agency stated. Consequently, an employer may administer COVID-19 testing to employees before they enter the workplace.

The tests should be accurate and reliable, the agency added, noting that employers should review guidance from the Food and Drug Administration and U.S. Centers for Disease Control and Prevention and check updates. present; a negative test does not mean the employee will not acquire the virus later.”

The EEOC stated that employers still should require that employees engage in social distancing and regular handwashing to the greatest extent possible.

Even before the April 23 update, Chai Feldblum and Sharon Masling, attorneys with Morgan Lewis in Washington, D.C., had said that testing an employee would follow the same logic as taking an employee’s temperature.

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CONSIDERATIONS FOR TESTING Durham said some EEO parameters employers should have in mind when considering whether to screen employees are:

Just as with temperature screening, screening/testing for COVID-19 must be conducted on a nondiscriminatory basis, which likely means that all employees entering the worksite must be tested. Assuming the results of such testing are retained, they need to be retained as confidential medical records according to the ADA’s requirements. Any screening, test or inquiry that is broader than necessary to address the potential direct threat is prohibited. Although unlikely, it is possible that an employee could have a medical condition that could require the employer to determine whether it can provide the employee with an accommodation, such as making available an alternative testing method to the (likely nasal swab) method being used. Employers will need to consider how to handle an employee’s refusal to submit to a test. For example, the employer could bar access to the worksite for an employee who refuses to cooperate.

He said that other considerations for employers include:

Being aware that there may be an obligation under wage and hour laws to pay employees for time spent waiting to be tested, as well as time spent waiting for the results of the test, assuming the employee will not be admitted to the workplace until the employer has the results. Requiring employees to consent in writing to the screening, including, but not limited to, acknowledging that the test is not a diagnostic test. Exercising care in selecting a test to use, particularly in light of well-documented issues with test accuracy. Determining when and under what conditions an employee who tests positive for COVID-19 will be able to return to the workplace. For example, is a subsequent negative test sufficient? Two subsequent negative tests? Weighing the implications of a positive test result as it relates to addressing potential exposure in the workplace (e.g., if the employee was at work in the days leading up to the date of the positive test).

DIAGNOSTIC AND SEROLOGY TESTING Diagnostic testing (for active COVID-19 infections) and serology testing (for antibodies to the virus) are a current focus of public health agencies and are undergoing rapid development and attempted deployment while a vaccine is in development, explained Jennifer Rubin, an attorney with Mintz in San Diego. Government regulators are also focused on contact tracing, which will be an important part of reopening the economy.

“It is too soon to tell whether diagnostic or serological testing will be mandated for all or nonessential employers, in part due to the lack of plentiful, reliable and accessible tests,” she said.

“Most individuals currently lack access to diagnostic testing, and unlike diagnostic testing, existing scientific data has not proven the efficacy of serology testing,” she cautioned.

“The EEOC might still be grappling with the more difficult issues around serology testing,” Feldblum and Masling said, noting that the agency has not yet addressed the legality of using serology tests.

This article was written by Allen Smith for SHRM, the Society for Human Resource Management, which creates better workplaces where employers and employees can thrive together. As the voice of all things work, workers and the workplace, SHRM is the foremost expert, convener and thought leader on issues impacting today’s evolving workplaces. For more information about SHRM visit https://www.shrm.org/.

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