Once again, the EEOC updated its question and answer series on how federal antidiscrimination laws impact workplace issues arising during the COVID-19 pandemic; this time addressing whether employers can test workers for coronavirus infection before they enter (or re-enter) the workplace.
The EEOC continues to periodically update its technical assistance publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, which expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers on testing, medical exams, and essential workers.
COVID-19 testing. The EEOC states that “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. Therefore, an employer has the option of choosing to administer COVID-19 testing to employees before they enter the workplace to determine if they have the coronavirus.
The Commission noted and reminded that the Americans with Disabilities Act requires that any mandatory medical test of employees be “job related and consistent with business necessity,” the standard the agency applied here.
Make sure the test is reliable. Consistent with the ADA standard, the EEOC said that employers should ensure the tests are accurate and reliable, pointing to guidance from the Food and Drug Administration about what may or may not be considered safe and accurate testing. There is also guidance from the CDC and other public health authorities and employers should continue to check for updates.
The Commission suggests that employers consider the incidence of false-positives or false-negatives associated with a particular test. Further, it is important to remember that accurate testing only indicates whether the coronavirus is currently present, and a negative test does not mean that the employee will not acquire COVID-19 later.
Practically speaking, very few employers can obtain COVID-19 tests for their workforce at this time, so currently the guidance has very little effect for employers. However, when tests become more prevalent, employers may use them in their toolkits and planning on how to re-open their businesses and planning for what steps they will take to protect their workforce.
Remember infection control practices. Based on guidance from medical and public health authorities, employers should still require, “to the greatest extent possible,” that employees observe infection control practices to prevent COVID-19 transmission, such as social distancing and regular hand washing.
The EEOC guidance suggests that employers need to remember that the ADA requires all medical information about employees be stored separately from personnel files and limits access to this confidential information. Employers may maintain all medical information related to COVID-19 in existing medical files (no need to create specific COVID-19 files). These medical files would include “an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.”
The EEOC will continue to monitor developments and provide assistance to the public as needed and we will share that information when it is available.