In the past few weeks, the EEOC has updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws on multiple occasions. The EEOC’s most recent update to this informal guidance provides an answer to 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?”

In answering this question, the EEOC applies the ADA standard which requires medical testing of employees be “job related and consistent with business necessity.” Applying this standard to the current COVID-19 pandemic, the EEOC states 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. But, the EEOC notes that employers should ensure that the tests are “accurate and reliable.” The EEOC’s ADA regulations also require direct threat determinations be based “on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” To satisfy these standards, employers should consider FDA and CDC guidance concerning standards for safe and accurate testing, including evaluating the incidence of false positives or negatives with the test.

What does this mean for employers? Like its earlier statements allowing employers to conduct temperature checks on employees, this latest addition provides employers with additional support for conducting or requiring employees to be tested for COVID-19 before returning to the workplace.

Of course, as the EEOC points out, COVID-19 testing only determines if the employee is currently ill, and, unless the employer intends to test every day, its effectiveness in preventing employees from reporting to work with the virus is limited. Nevertheless, requiring a negative COVID-19 test before employees return to work following COVID-19 infections or quarantines may provide employers additional comfort and protection.

Daily COVID-19 testing likely is not practical because of cost and limited availability, at least currently. Temperature checking, while not necessarily determinative of whether an employee has the virus, is an option in many jurisdictions, especially if paired with questionnaires concerning potential COVID-19 symptoms or activities (e.g., attendance at mass gatherings) that increase the risk of COVID-19 exposures. Pulse oximeter testing and antibody or serology testing are rising in popularity (at least in the media). Currently, neither has been approved expressly by the EEOC. If the CDC or FDA approves these to combat COVID-19, this may change. According to the FDA’s FAQs on Diagnostic Testing For SARS-CoV-2, the “FDA is not aware of an antibody test that has been validated for diagnosis of COVID-19 infection.”

Of course, the EEOC’s opinion only addresses concerns under the ADA. Employers also need to consider state and local laws, including privacy concerns.

Jackson Lewis attorneys and the dedicated COVID-19 Task Force are tracking the rapidly evolving federal, state, and local mandates. Please contact a Jackson Lewis attorney with any questions.

 

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Photo of Francis P. Alvarez Francis P. Alvarez

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by…

Francis P. (Frank) Alvarez is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He is the Leader of the Disability, Leave and Health Management Practice Group, which assists employers in meeting the legal and practical challenges posed by federal and state laws protecting injured and ill employees.

Counseling hundreds of employers each year, Mr. Alvarez spearheads the firm’s effort to provide imaginative and creative solutions to the complex array of workplace disability and health management issues faced by both large and small companies. In the Jackson Lewis tradition, Mr. Alvarez counsels clients with the goal of either avoiding litigation entirely or improving outcomes before administrative agencies, courts and juries.

Mr. Alvarez especially enjoys assisting clients conduct the “individualized assessment” required by a growing number of federal and state laws. These efforts include helping employers effectively communicate with employees and medical providers in an effort to evaluate potential risks to health and safety posed by employee injuries or illnesses. In an area of law in which there often are few bright lines, Mr. Alvarez attempts to develop practical and constructive solutions centered on the concept he calls “tc2” — taking care of employees and taking control of risks.

Recently, Mr. Alvarez has begun leading the Firm into another exciting and fast-developing area of workplace law called “health management.” Challenged by increases in health care and work injury costs, employers are searching for innovative ways to motivate employees to participate in wellness and health promotion programs. Mr. Alvarez leads a team of Jackson Lewis attorneys who advise employers on ways to implement these important programs while complying with emerging and largely undeveloped federal and state law protections.

Mr. Alvarez writes and speaks frequently on disability management issues, including legal developments under the Americans with Disabilities Act and the Family and Medical Leave Act. He has delivered presentations at major speaking engagements, including SHRM’s national and legislative conferences. Throughout his legal career, Mr. Alvarez has represented employers as lead counsel in both trial and appellate courts and has successfully tried employment discrimination claims to verdict.

Photo of Patricia Anderson Pryor Patricia Anderson Pryor

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Patricia Anderson Pryor is a Principal and Litigation Manager of the Cincinnati, Ohio, office of Jackson Lewis P.C. She is an experienced litigator in both state and federal courts, representing and defending employers in nearly every form of employment litigation, including class actions.

Ms. Pryor represents and advises employers in federal and state administrative proceedings, in all forms of dispute resolution, including mediation and arbitration, and in managing all aspects of the employment relationship. She has represented employers before the EEOC, the DOL, the DOJ, the OFCCP, and the NLRB, in addition to various state agencies.

Ms. Pryor also works with employers to avoid litigation by developing effective policies and practices, including harassment policies, social media policies, FMLA practices, attendance programs, affirmative action programs and wellness plans. She conducts proactive wage and hour audits, harassment investigations and compensation/pay equity reviews.

She is a frequent speaker at legal seminars and to employers and professional groups and provides training to managers and human resource professionals on a wide variety of employment and legal issues, including wage and hour issues, harassment, disability, the Family and Medical Leave Act, pay equity and affirmative action obligations. She has been featured on the radio program “Employment Straight Talk” and has published a number of employment law articles.

While attending law school, Ms. Pryor was a member of the editorial board of the University of Cincinnati Law Review.

Learn more about Ms. Pryor on the Jackson Lewis website.