Last month, I wrote an article outlining the steps that employers may take to guard against coronavirus in their workplace. Thanks to a recent Guidance issued by the Equal Employment Opportunity Commission (“EEOC”), employers were able to implement several steps, such as taking employee temperatures and insisting that employees stay home if sick, to prevent COVID 19 spread in the workplace. Recently, the EEOC has expanded on this Guidance, and has added another tool for employers to use in their fight to prevent contagion of their workplace. Now, not only can employers require that previously positive COVID 19 employees provide medical documentation that they are fit to return to work, but employers can now also actually choose to administer COVID-19 testing themselves to all employees before they enter the workplace to determine if they have the virus. The one important question that the Guidance does not answer, however, is where employers will actually get those tests to administer given the well-publicized testing shortages that currently exist in fighting the on-going pandemic.
So, why is such testing permitted? Given the current pandemic, according to the EEOC, such testing is “job related and consistent with business necessity” because any employee who is COVID 19 positive poses a direct threat of harm to the safety of other employees, which is the standard applied for allowing such employee medical testing under the Americans with Disabilities Act. (“ADA”) The EEOC nevertheless cautions that, consistent with this ADA standard, employers should ensure that the tests are accurate and reliable. In this regard, Employers are urged to review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers are also advised to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, the Guidance further warns also that accurate testing only reveals if the virus is then currently present, and that a negative test does not mean the employee will not acquire the virus at some later juncture.
In the end, while allowing testing, the EEOC ultimately urges that employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other similar measures) in the workplace to prevent transmission of COVID-19 as recommended by the CDC and other federal and state health organizations.
So, if you are an employer lucky enough to have access to testing, you now have the green light from the EEOC to administer such testing across your workforce. If you do decide to implement such testing measures, remember that, it being a medical test, ADA confidentiality and privacy rules apply to both the communication of (and maintenance of) results, and such sensitive private medical information should only be shared with others on a need to know basis.