How far can employers go with COVID-19 testing?
Tuesday, August 18, 2020
The Equal Employment Opportunity Commission (EEOC) has issued guidelines on COVID-19 testing in the workplace. While the guidelines say that employers can screen employees for COVID-19, they also contain parameters.
Per the EEOC, employers can conduct viral tests if specific conditions are met.
Generally speaking, the Americans with Disabilities Act (ADA) prohibits mandatory medical tests of employees except for when the testing is “job related and consistent with business necessity.”
Regarding the COVID-19 pandemic, the EEOC says that employers can administer viral tests to employees before they enter the workplace, so as to determine whether they have COVID-19 — as an employee with the virus “will pose a direct threat to the health of others.” (Note that a viral test shows whether the individual currently has COVID-19.)
The ability to conduct viral testing for COVID-19 isn’t limited to employers covered by the ADA. “For all employers, regardless of size, viral testing for COVID-19 is permissible, provided it is job related,” said Molly DiBianca, employment attorney at Clark Hill PLC.
She added, “It would not be job related to require viral testing for employees who are working remotely and who have no in-person contact with coworkers, clients, or customers. However, if an employee will or may have in-person contact, viral testing is permissible provided it is done correctly.”
As stated by the EEOC, employers must make sure the tests are “accurate and reliable.” When deciphering what may or may not be safe and accurate testing, employers can refer to guidance from the U.S. Food & Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and other public health authorities.
Employers should also consider false-positives or false-negatives tied to a particular test, and that a negative test does not mean the employee won’t catch the virus later.
Temperature checks are permitted.
Pursuant to EEOC guidance, employers can require all employees to undergo daily temperature checks before entering the worksite. However, employers should remember that not everyone with a fever has COVID-19, and not everyone with COVID-19 has a fever.
“When considering whether to implement temperature screenings for employees, employers should consider the logistics of managing the screening process,” said DiBianca. “The person designated to perform the temperature screening should be properly trained and must be provided with all necessary personal protective equipment, such as gloves and mask. Ideally, employers should conduct temperature checks in a private area, out of sight of other employees, and should keep the results confidential.”
DiBianca asserted that taking an employee’s temperature is considered a medical exam; so, the employer may not share the results of the test with persons who do not have a legitimate reason to know. Further, the results constitute private medical information and therefore may not be recorded in the employee’s personnel file.
Mandatory antibody testing is not permitted.
Whereas viral testing shows whether the individual currently has COVID-19, antibody testing might reveal whether they previously had the virus.
Under EEOC guidelines, antibody testing for COVID-19 is a medical exam that is not “job related and consistent with business necessity.” Therefore, ADA-covered employers should not require COVID-19 antibody testing.
As for employers not covered by the ADA — meaning, those with fewer than 15 employees — they, too, should proceed with caution.
“Employers with fewer than 15 employees still may be subject to a state anti-discrimination statute, which, like the ADA, limits the use of mandatory medical inquiries and exams,” said DiBianca.
She suggested that very small employers who are not subject to the ADA or a state-law equivalent could have more flexibility when considering whether to implement antibody testing.
However, for most employers, antibody testing is off limits. Per DiBianca, “The EEOC has made clear that antibody testing is not a job-related medical exam and is therefore prohibited under federal law.”
There’s also the tricky matter of employers being subject to federal and state or local COVID-19 testing rules.
DiBianca explained that most employers will be subject to federal and/or state anti-disability discrimination laws, which impose restrictions on when and how COVID-19 testing may be performed. Adding to the potential confusion are state and local laws and executive orders.
“As a general rule, federal, state, and/or local laws that do not conflict with one another must all be followed,” said DiBianca. “Where a federal and state or local law do conflict, generally the federal law will prevail. Thus, if a county ordinance requires that all employees over 65 be tested for COVID-19 prior to returning to the physical workplace, federal law, which prohibits discrimination based solely on age, would take precedence.”
Precise application of conflicting employment laws is essential to compliance, but it can be difficult to achieve without proper guidance. The same goes for adopting workplace COVID-19 testing policies and procedures. In both scenarios, employers should consider consulting with an experienced employment attorney.
Also important is staying on top of developments (on COVID-19 testing) from the EEOC, FDA, CDC, and other public health authorities.
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