The COVID-19 (Coronavirus) disease pandemic and the resulting total shutdown of workplaces for the past 2 months has been emotionally challenging for employers, employees and people in general, changing day-to-day life as we knew it in unprecedented ways. Now with shelter at home restrictions being lifted, and the real danger of community spread of the Coronavirus still ever present, all sections of society – including employers and employees – need to play a role to protect themselves, each other, and the customers they serve to help prevent and limit further spread of the disease. Recognizing the direct threat at workplaces and to mitigate liability, a number of employers are instituting systematic COVID-19 screening programs in place. Provided below is a synopsis of the updates from the EEOC and the ADA with regards to the legal implications of such screening programs and what is applicable.
With regards to the Equal Employment Opportunity Organization’s (EEOC) laws, including the American Disabilities Act (ADA) and the Rehabilitation Act – these continue to apply during the time of the COVID-19 pandemic. However, 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.
The EEOC recently issued an update regarding pandemic screening for COVID-19, which includes a temperature check, and COVID-19 testing. 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 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.
Recognizing the challenges faced by employers and to aid the local businesses in and around Atlanta, Buckhead Medicine recently introduced a COVID-19 Surveillance System that employers can subscribe to and have instituted for their worksites. The program embodies a comprehensive set of data driven components to determine transmission and contraction risk: 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.
The program is in compliance with the law in light of the pandemic environment that businesses are having to operate within that poses a direct threat to the safety and wellbeing of their employees and customers. It should be noted that the updates and guidance from the EEOC and ADA 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 when instituting any health screening program.
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
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