Now that some states are preparing to lift shelter-in-place orders that would allow businesses to reopen, employers are trying to determine the best way to have their employees return to work despite the continuing risks presented by the novel coronavirus, COVID-19. The Equal Employment Opportunity Commission (the “EEOC”) issued guidelines advising employers about practices that they may take to control COVID-19 exposure in the workplace.
On March 19, 2020, the EEOC issued Pandemic Preparedness in the Workplace and the Americans With Disabilities Act , which was updated on March 21, 2020. This guidance identifies steps that employers can take to limit the spread of the virus at work that would not violate the Americans With Disabilities Act (the “ADA”), including: (1) asking employees who report feeling ill or who call in sick about virus-related symptoms; (2) taking employees temperatures; and (3) sending symptomatic employees home. While this guidance was helpful, employers now know some persons infected with COVID-19 do not exhibit symptoms but are still contagious—called asymptomatic cases. The EEOC’s March guidance did not address steps employers could take to protect against asymptomatic cases without violating the ADA. Yesterday, however, the EEOC issued additional guidance that is instructive on this issue.
In What You Should Know About Covid-19, the ADA, the Rehabilitation Act, and Other EEO Laws , April 23, 2020, the EEOC expanded on its March guidance on steps employers can take to limit virus exposure at work without violating employees’ rights. The EEOC states that employers may test employees for COVID-19 before permitting them to return to the workplace. According to the EEOC, such testing does not violate the ADA because it is “job related and consistent with business necessity” and the virus poses a “direct threat” to the health of others. Testing will help employers identify asymptomatic cases in their workforce and distinguish employees infected by other illness with symptoms similar to COVID-19.
For compliance purposes, employers must pay attention to the method and manner of their virus test. According to the EEOC, employers must ensure any virus test they plan to require satisfies the standards set forth by the Food and Drug Administration (FDA) or other agencies, such as the Centers for Disease Control and Prevention (CDC), for safe, accurate and reliable testing. Moreover, employers must not only follow all other ADA requirements like maintaining confidentiality over specific test results as protected healthcare information, but also follow federal and state wage laws addressing whether testing time is compensable work. Employers must be vigilant to prevent testing from becoming an additional area of exposure.
Because an employee cleared through testing may become infected after being cleared to return to work, employers should not consider testing to be the sole solution for protecting against virus exposure at work. Beyond testing, employers are encouraged to observe strict infection control procedures at work. Employers should encourage/require the use of Personal Protective Equipment (PPE), social distancing (to the extent possible) and handwashing to prevent transmission of the virus. To this extent, the adage that an ounce of prevention is worth a pound of cure applies.
If you have questions about any aspect of the testing process, please contact the Lawrence & Bundy LLC attorneys with whom you work.