Legal Updates for Employment Law
As States Begin to Ease Stay-At-Home Restrictions, EEOC Provides Guidance on Return-To-Work Requirements and COVID-19 Testing
The first directives on what needs to happen before businesses will be permitted to reopen and employees return to work have just been announced in various states. As employers begin to consider precautions to take when their businesses reopen, the EEOC has provided updated guidance to address COVID-19-related questions for employers, including in the areas of disability-related inquiries and medical exams, confidentiality of medical information and employees’ return to work. The EEOC’s latest Q and A, “What You Should Know About COVID -19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” can be found here. (updated 12.16.2020) (The EEOC’s coronavirus site can be found at https://www.eeoc.gov/coronavirus)
Although the EEOC acknowledged its longstanding position that the “ADA prohibits employee disability-related inquiries or medical examinations unless they are job-related and consistent with business necessity,” in the world of the COVID-19 pandemic, the EEOC understands that a determination of whether “an employee will pose a direct threat due to a medical condition” is central to establishing return-to-work precautions. In its guidance, the EEOC expressly notes that the “COVID-19 pandemic meets the direct threat standard,” recognizing current health and science-related pronouncements of the CDC and federal, state and local public health authorities, which all have acknowledged community spread of COVID-19 in the United States. As a result, the EEOC acknowledged that those “facts manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”
In light of this “direct threat” pronouncement, the EEOC has provided a green light for employers to take the temperatures of their employees (and others) who enter their workplaces, and to make inquiries about whether an individual is suffering any COVID-19-related symptoms, in the process of establishing return-to-work procedures. In addition, on April 23, 2020, the EEOC went a step further to also permit COVID-19 testing as part of those procedures. The specifics of the EEOC’s question and analysis are below:
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
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 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. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, 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.
Based on guidance from medical and public health authorities, 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.
The EEOC’s guidance acknowledges that revisions from the CDC and state/local public health authorities of their assessment of the spread and severity of COVID-19 could affect whether a “direct threat” still exists. Accordingly, the EEOC guidance makes clear that employers should be diligent about reviewing the most up-to-date guidance issued by the CDC as states begin their reopening process.
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