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April 27th, 2020
EEOC Permits Employers to Test for COVID-19
This week, as parts of the nation began returning to work, the EEOC responded to an increasingly urgent question: May employers test employees for COVID-19?
The answer is yes. In an update to its core employer guidance on COVID-19, the agency confirmed that employers may test employees for COVID-19 before those workers enter the worksite. Prior to the pandemic, the Americans with Disabilities Act (ADA) would have prohibited employers from testing employees for COVID-19. But because infected employees currently “pose a direct threat to the health of others” in the workplace, testing employees for COVID-19 is, according to the EEOC, sufficiently “job related and consistent with business necessity” to pass muster under the ADA.
The EEOC’s new guidance does not require COVID-19 testing; it simply permits it. The guidance advises employers who undertake testing to first review FDA, CDC or other government guidance on safe, accurate, and reliable testing methods. The guidance also reminds employers that a negative test result does not ensure an employee will be infection-free in the future. As a result, employers should still require—“to the greatest extent possible”—transmission prevention measures like social distancing and regular handwashing in the workplace. Finally, the guidance does not speak to COVID-19 antibody testing.
The current guidance follows earlier guidance from the EEOC in March that permitted employers to check body temperatures and to require a doctor’s note from employees certifying their fitness to work. In early April, the EEOC expanded that guidance to allow employers to ask whether employees are experiencing COVID-19 symptoms identified by the CDC, other public health authorities, and reputable medical sources.
Securing test information; recordkeeping. Remember that any information gathered from medical testing—including temperature tests or surveys asking whether employees are experiencing COVID-19 symptoms—must be treated as confidential under the ADA. Employers should only share test results or other confidential information with the employee’s supervisor or manager and only on a need-to-know basis for job purposes. Employers should also store this confidential information in a secure location and separate it from personnel files. Finally, employers should consult their state and local laws to identify other compliance requirements. (See, for example, California’s Confidentiality of Medical Information Act (CMIA), which requires California employers to obtain written authorization before disclosing medical information obtained from a provider of health care, health care service plan, pharmaceutical company, or contractor. Cal. Civ. Code § 56.20.)
If you have questions about the new EEOC guidance on COVID-19 testing, or about other employment law issues, please contact Wendy Stryker, Tricia Legittino, Viviane Scott, or any other member of the Frankfurt Kurnit Employment Compliance, Training & Litigation Group.
Other Employment Law Alerts
Checklist: Eleven Policies to Consider Before Reopening Your Business
As economies across the country begin restarting and the COVID-19 pandemic continues, employers have some important, pandemic-related revisions to consider for their employment policies and handbooks. Frankfurt Kurnit’s employment team has been reviewing the applicable federal, state, and local laws, guidelines and regulations to gather a list of specific policies employers should consider creating or revising. Read more.
May 27 2020
California Sues Uber and Lyft for Worker Misclassification
This week, more shots were fired in the ongoing war over AB5. On May 5, 2020, California’s Attorney General and city attorneys for Los Angeles, San Diego, and San Francisco sued Uber and Lyft for misclassification of hundreds of thousands of California workers. Read more.
May 13 2020
SBA Clarifies Key Loan Forgiveness Issue for Employers
Over the last several weeks, many business have applied for and received loans pursuant to the Paycheck Protect Program administered by the Small Business Association. A key feature of the PPP loans is that they are potentially 100% forgivable so long as headcount and salary levels remain constant through an eight week period that begins to run when the loan is funded. Read more.
May 12 2020