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.