EEOC: Employers May Test Employees for COVID-19 Prior to Entering Workplace
The novel coronavirus or COVID-19 pandemic has left a pronounced mark on numerous large and small businesses. One need only skim articles on the rising unemployment numbers to get a picture of just how bad the situation really is. Despite this grim reality, the tide appears to be shifting as there are whispers of America "opening up" for business again. But what then? How do we protect against another outbreak?
On April 23, 2020, the U.S. Equal Employment Opportunity Commission ("EEOC") provided an update to its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws guidance, stating that employers are allowed to administer COVID-19 testing on employees prior to entering the workplace.
Specifically, under the Disability-Related Inquiries and Medical Exams section, question A.6 asks whether an employer is allowed to administer a COVID-19 test before permitting employees to enter the workplace? Yes, with caveats. [1]
First, EEOC notes that "employers should ensure that the tests are accurate and reliable." One suggested approach posited by the EEOC is reviewing guidance from the U.S. Food and Drug Administration ("FDA") concerning what "may or may not be considered safe and accurate testing." Indeed, EEOC also notes that "employers may wish to consider" the prevalence of false-positives or false-negatives associated with a particular type of test. Finally, the EEOC cautions that accurate testing only reveals whether a person currently has COVID-19 and does not address the fact that a person could become infected at a later time.
For employers who are considering this approach, it's important to remember that the EEOC also provided guidance related to employee files associated with this "medical information." Under the Confidentiality of Medical Information section, question B.1 asks whether an employer may store in existing medical files the information it obtains related to COVID-19 testing (among others)? Yes, with caveats. Specifically, the EEOC answer provides:
The ADA requires that all medical information about a particular employee be stored separately from the employee's personnel file, thus limiting access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes 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.
As the world slowly begins to return to "business as usual," employers will surely be grappling with a new normal. While increased telework opportunities and decreased square footage might be a natural consequence of the COVID-19 pandemic, businesses will surely be contemplating how to best ensure the safety, health, and security of their workforce. Where COVID-19 workforce testing is contemplated, businesses should pay close attention to EEOC guidance, as well as any other guidance from Federal, state, and local authorities on this issue.
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[1] Notably, it's worth pointing out that EEOC's question is posited as whether an "employer [may] administer a COVID-19 test" as opposed to, for example, whether an employer may require employees to obtain their own tests prior to returning to work.
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