On April 23, 2020 the Equal Employment Opportunity Commission (EEOC) provided additional guidance on issues related to COVID-19, the ADA, the Rehabilitation Act, and other EEO Laws. https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
This information supplements the EEOC publication on March 21, 2020 entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”. https://www.eeoc.gov/facts/pandemic_flu.html
The EEOC explained that the ADA requires any mandatory medical tests of employees be “job related and consistent with business necessity” and that an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”
This guidance also offered some caveats for employers in testing their employees:
- Employers should ensure the tests are accurate and reliable
- Employers may consider the incidence of false-positives or false-negatives associated with a particular test
- Employers must remember that accurate testing only reveals if the virus is currently present and a negative test does not mean an employee will not acquire the virus later
Although the ability to obtain these tests is currently limited, these tests may become more widely available as employers consider their use in navigating how to safely reopen their businesses during the pandemic.
The EEOC stressed that employers need to remember that the ADA requires all medical information about employees to be stored separately from their employee or personnel files and that access to this information should be limited. This information can be contained in existing medical files.
This latest guidance adds to the EEOC’s previous guidance which allows employers to do the following when reopening their businesses:
- Take the temperature of employees
- Ask an employee is they are experiencing symptoms of the virus including symptoms such as fever, chills, cough, shortness of breath, or sore throat
- Bar an employee from the workplace if he/she refused to answer questions about COVID symptoms
- Require employees who exhibit symptoms to leave the workplace or stay home
- Require a COVID-19 test before permitting employees to enter the workplace
- Require a doctor’s note certifying fitness for duty upon return to work
- Withdraw a job offer for an applicant who tests positive
- Upon hiring, screen job applicants for symptoms after making a conditional job offer, as long as it does so for all entering employees in the same type of job
- Disclose the name of an employee to a public health agency when it learns that the employee has COVID-19
EEOC
https://www.eeoc.gov/coronavirus/
DOL
https://www.dol.gov/coronavirus
CDC