EEOC: Employers permitted to administer COVID-19 tests
On April 23, 2020, the Equal Employment Opportunity Commission officially stated that employers may administer a COVID-19 test – the test used to detect the presence of the COVID-19 virus – to employees to determine if they have the virus before allowing them to enter the workplace.
The EEOC did not speak to other tests, such as antibodies tests.
The EEOC reasoned that mandatory medical tests of employees are permitted under the Americans with Disabilities Act when they are job-related and consistent with business necessity. Applying this standard to the current COVID-19 pandemic, employers make take steps to determine if employees entering the workplace have contracted COVID-19, such as asking questions about symptoms and taking temperatures, because an individual with the virus would pose a direct threat to the health and safety of others. Therefore, employers may also choose to administer a COVID-19 test to determine if employees have the virus before allowing employees to enter the workplace.
Testing best practices
Employers are responsible for ensuring that the tests used are accurate and reliable. The EEOC encouraged employers to review guidance from the U.S. Food and Drug Administration about whether the testing is safe and accurate, as well as guidance from the CDC and other public health authorities. The EEOC also cautioned employers that they may need to consider incidences of false-positives or false-negatives associated with a particular test. Moreover, although a positive test reveals whether the virus is currently present, a negative test does not mean the employee could not acquire the virus later. So, social distancing, regular handwashing, and other recommended hygiene practices are still of the utmost importance to preventing transmission.
If an employer chooses to administer COVID-19 tests, they should do so in a consistent, non-discriminatory manner. Tests should be required for all employees, or at least all employees within a specified group or department based on legitimate business concerns.
As it stands, the EEOC has already stated in its prior webinar that employers may exclude those with COVID-19 symptoms from the physical workplace, and it also stated that an employer may bar an employee from physical presence in the workplace if the employee refused to answer questions about whether they have COVID-19, symptoms associated with COVID-19, or have been tested for COVID-19, as well as the ability to bar the employee’s presence if they refuse to have their temperature taken. To gain cooperation, employers may wish to ask the reasons for the employee’s refusal, and should advise the employee that these steps are being taken to ensure the safety of everyone in the workplace. In its webinar, the EEOC also provided an example of a permitted individualized inquiry. If an employer notices that an employee has a persistent, hacking cough, it could ask about the cough, whether the employee has been to a doctor, and whether the employee knows if they have or might have COVID-19. The reason these types of questions are permissible now is because this type of cough is one of the symptoms associated with COVID-19.
As for administering COVID-19 tests, the EEOC was silent on the issue of who bears the cost of such testing. When an employer requires an employee to go to a healthcare professional of the employer’s choice for testing, the ADA requires the employer to pay all costs associated with the visit. But even if employees are tested by labs that are not of the employer’s choosing, it is nevertheless recommended that the employer still pay for all costs associated with the testing. The outcome of the testing should be stored in a confidential manner, in a separate medical file.
Employers should consider whether they can achieve safety in the workplace without administering COVID-19 tests. For employers engaging in return-to-work discussions and planning, employers should contact testing facilities to determine the typical waiting period for test results and build this into their return-to-work program. Employers may even be able to come to an agreement with certain testing facilities to provide specific scheduled times for their employees to be tested. If it typically takes a week for results to come back, employers should create a schedule that notifies employees of the need to be tested, provides adequate time for receipt of test results, and provides a return-to-work date for employees with negative results.
As always, if you have any doubt on whether to test or how to conduct testing, do not hesitate to contact the McAfee & Taft COVID-19 Response Team for guidance.