Ordinarily, the Americans with Disability Act (ADA) prohibits an employer from performing medical tests/clinical exams on its employees – but these are no longer ordinary times – we are now living in a new normal with unfolding waves of the COVID-19 pandemic, prompting the EEOC and the ADA to issue updates regarding what is permissible in these times.
On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) stated that “an employer may choose to administer COVID-19 testing / temperature checks to employees before they enter the workplace to determine if they have the virus.” Recent updates with guidance from these organizations indicate that their existing laws are not to interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities with regards to steps employers need to take for COVID-19 to safeguard the health of coworkers, customers, and for participating in the control of the pandemic. Further, the EEOC update indicated that “During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus, such as fever, chills, cough, shortness of breath, or sore throat.” The EEOC indicated that Employers are to maintain all such information about an employee’s illness or absence thereof as a confidential medical record in compliance with the ADA.”
The EEOC’s most recent update specifically 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. So 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.
The COVID-19 Surveillance System embodies a comprehensive set of components to determine transmission and contraction risk (Click here to learn more): COVID-19 testing for active infection using the nasal RT PCR test from Quest Diagnostics, complete clinical evaluation at baseline of employees enrolled into the program (temperature checking, pulse oximeter readings if needed, paired with questions concerning potential COVID-19 symptoms or activities (e.g., attendance at mass gatherings, family member COVID status, etc.) that increase the risk of COVID-19 exposures. In addition all enrolled employees are also tested for antibodies (IgM & IgG). Though none of these tests are yet definitive or expressly recommended by the CDC, they provide additional data for computation of the different types of risk and the summary recommendations generated by the system for an employee. We have provided further information regarding serology tests from the FDA.
The other key issue to address here is the disclosure and confidentiality of an employee’s COVID-19 test results. According to the EEOC guidance, employers are to maintain confidentiality of employees’ medical information, including COVID-19 test results. After test results are received, the tester can share the results with a designated individual at the employer, who can then communicate the information to managers on a need-to-know basis only. And this is exactly the way the COVID-19 Surveillance System works – employee participation is decided upon by the employer and is voluntary and the results / recommendations from the data algorithms are accessed via a secure portal with restricted access to key designated users at the employer organization, and with employees having access to their own results. The information provided to the employer for a given employee is a summary based data driven recommendation – safe to return to work (green), work from home for XX days (yellow), and self-isolate to minimize transmission risk (red). An employee’s identity is only disclosed to their manager only if it is necessary to prevent a direct threat to safety to co-workers and or customers.
Also, in accordance with the ADA / HIPAA, the system is compliant with requirements for an employer’s storage of medical information. As required by the ADA, the COVID-19 Surveillance System maintains the COVID-19 related medical information concerning an employee separately from the employee’s personnel file in a confidential and secure encrypted medical data repository. In addition, even after the end of their subscription, employers will have access to the data and information in the encrypted secure repository for the statutory period of 7 years.
We are expecting the EEOC and ADA guidelines to continue to evolve as testing becomes more widely available and state governments begin to loosen stay-at-home restrictions. These guidance are in place to address a “Direct Threat,” and most likely will no longer apply once the pandemic is no longer deemed a threat. What remains consistent under ADA guidelines, however, is the illegality of firing an individual over a condition like COVID-19. Also note that the EEOC’s opinion only addresses concerns under the ADA. Employers also need to consider state and local laws, including privacy concerns that might apply.
ADDITIONAL RESOURCES
1. To view the EEOC update, click here for the latest update: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
2. To review the FDA’s device center’s webpage listing the serology tests that are administered under the EUA policy, some of which are directed toward a single antibody while others capture multiple antibodies, click on the link below. The list includes data on sensitivity and specificity along with positive and negative predictive values (PPV and NPV, respectively). The agency has advised that the PPV and NPV values are still based on an assumed prevalence of 5% in the area where a given serological test is administered.
Other links with more detail on above topics:
https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act
https://www.venable.com/insights/publications/2020/04/eeoc-says-ok-for-mandatory-employee-covid19
https://www.natlawreview.com/article/eeoc-opines-covid-19-testing-employers
