Tue, 09/22/2020
As many employers consider COVID-19 screening and testing for employees, the U.S. Equal Employment Opportunity Commission (“EEOC”) recently released guidance regarding testing in the workplace. The EEOC advises that employers utilizing COVID-19 screenings should rely on the CDC and other public health authorities when asking employees about possible COVID-19 symptoms that they are experiencing. Significantly, employers are not limited to only asking about COVID-19 symptoms identified by the EEOC.
The American with Disabilities Act (“ADA”) contains restrictions on when and how much information an employer can obtain from an employee. The ADA requires that mandatory medical testing of employees be “job related and consistent with business necessity.” Considering this standard, the EEOC advises that employers may conduct screenings 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.” As such, employers may administer COVID-19 screenings or tests when employees enter the workplace and periodically. The ADA does not prohibit employers from following CDC recommendations regarding testing protocols since testing administered by employers is consistent with the ADA’s business necessity requirement.
However, employers should ensure that tests are accurate and reliable. The U.S. Food and Drug Administration provides information on testing protocols that are safe, accurate and reliable. Moreover, employers should be cognizant of the significance of test results and the possibility of false-positives and false-negatives.
Although employers may administer COVID-19 screenings and tests, employers may not require employees to undergo a COVID-19 antibody test before re-entering the workplace. Antibody tests are considered a medical examination under the ADA and the CDC advises that antibody testing should not be used to make decisions about employees’ re-entry into the workplace. As such, the EEOC advises that antibody testing does not meet the ADA’s business necessity requirement.
Employers may only ask an individual employee to complete a COVID-19 screening or test if the employer has a reasonable belief based on objective evidence that the employee might have COVID-19. An employer may ask an individual employee to undergo a COVID-19 screening or test if he or she displays COVID-19 symptoms. If an employee refuses to undergo a COVID-19 screening or test, the employer may refuse to allow the employee in the workplace. The EEOC recommends that the employer ask the employee about their refusal in order to alleviate any privacy concerns. The ADA prohibits employers from widely spreading an employee’s medical information to other employees.
