The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance allowing employers to test employees for COVID-19 under certain circumstances. Specifically, the guidance posed, and answered, the following question:
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 Americans with Disabilities Act (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.
The guidance further advises that testing does not negate the importance (and in many cases, requirement, in state and local government orders) of infection control protocol such as social distancing, handwashing and frequent disinfection of high traffic areas.
Employers should consult with counsel prior to implementing testing. Even though testing is considered acceptable by EEOC, there are related legal issues to consider. For example, if employers are considering having only certain groups of employees test for COVID-19 and not others, it could result in perceived differential treatment and discrimination claims. Also, although testing current employees is permitted, testing applicants for COVID-19 is not. That is because the risk associated with an individual’s positive test is a temporary one, justifying temporarily keeping the employee out of the workplace. It would not be a permissible reason to refuse to hire someone.
Employers must also consider the logistics of the testing administration. Specifically, they must consider if the employees are going to wait in line to be tested, how long it takes to administer the test and whether to compensate employees for time spent waiting to be tested. Although there is no specific guidance as of yet from the U.S. Department of Labor on the question, and case law could be interpreted both ways, a conservative approach would be to pay non-exempt workers for time spent waiting to be tested.
Finally, but equally important, COVID-19 testing comes with confidentiality requirements. Employers must control who will have access to the test results and with whom those results may be shared, how/where the results will kept and for how long the record will be retained.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.