The Equal Employment Opportunity Commission (EEOC) updated the guidance document titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws” on April 23, 2020 to address employer testing for COVID-19 in the workplace. The EEOC’s guidance document is a series of technical questions and answers geared towards assisting employers with implementing various COVID-19 protection measures in the workplace without violating the Americans with Disabilities Act (ADA) or other EEO laws. This is the latest in a series of informal updates relating to COVID-19 issued by the EEOC since mid-March.
As part of the guidance, the EEOC reminds employers that while EEO laws, such as the ADA and the Rehabilitation Act, are still applicable during the COVID-19 pandemic, the laws should not interfere with or prevent employers from following the guidelines issued by the Centers for Disease Control and Prevention (CDC) and other state and local public health agencies relating to COVID-19.
The question addressed by the most recent EEOC guidance is whether an employer can administer a COVID-19 test before permitting their employees to enter the workplace. The EEOC reminds us that the ADA requires that any mandatory medical test of employees must be “job related and consistent with business necessity.” When an employer applies this standard to the workplace during a pandemic such as COVID-19, an employer may take certain precautionary steps, such as testing for the virus, to prevent employees with COVID-19 from entering the workplace because an individual with the virus will pose a direct threat to the health of other employees.
The guidance further states that to comply with the ADA standards, employers who test their employees for COIVD-19 must ensure that the tests are accurate and reliable. Employers are encouraged to regularly review guidance from various authorities, such as the US Food and Drug Administration, the CDC and other public health agencies, with regard to what is considered to be safe and reliable testing. The EEOC also cautions employers on the possibility of false positives and false negatives and that an employee who tests negative at one point, could acquire the virus at a later date which means that testing, unless it is conducted on a daily basis, may not be an effective tool for employers. Additionally, employers who decide to implement COVID-19 testing should be prepared to address potential objections by employees to the testing based upon various reasons, such as religious beliefs, and employees who refuse testing.
In order to comply with the requirements of the ADA, employers will have to store all medical information relating to employees separately from the employee’s personnel file and such information must remain confidential. Medical information includes not only test results but also any notes or questionnaires an employer uses when screening an employee about possible exposure and symptoms.
Finally, the EEOC reminds employers that it should continue to follow the practical guidance from public health authorities and the CDC with regard to infection control and prevention practices, such as social distancing, regular handwashing and regular cleaning and disinfection practices in the workplace.
The EEOC’s most recent update only addresses the ADA but there are many other state and local laws that employers need to be aware of as it relates to COVID-19 in the workplace. If you have any questions regarding the EEOC’s guidance on COVID-19 testing for employers or other issues relating to COVID-19 in the workplace, please contact any member of the McNees Labor and Employment Group.