April 30, 2020 By Melanie Neumann, J.D., M.S.

Employer Rights Expanded

Despite continued shortages on test supplies, the Equal Employment Opportunity Commission (EEOC) recently updated guidance on the Americans with Disabilities Act (ADA) to allow employers to administer mandatory COVID-19 testing to employees before entering the workplace, even if asymptomatic.

This testing is deemed a medical examination, like taking employee’s temperatures has been since this pandemic was declared a national emergency. This expanded employer right is allowed when employees pose a direct threat to others. It seems reasonable that COVID-19 positive employees would rise to meet this definition.

See the updated Q&A from the EEOC: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm#A.2

A.6. 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? 4/23/20
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, 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. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may 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 may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Key Factors When Considering Mandatory Testing

It is important to keep in mind that medical examinations must be “job-related” and “consistent with business necessity,” be “accurate” and “reliable” and include guidance from the CDC and FDA. In short, there is a lot of factors that must be weighed. As such, employers should tread carefully as they wade into these new waters.

Some key considerations are listed below (not exhaustive):

• Any testing must be performed in a non-discriminatory manner
o Net impact: Likely need an all or nothing approach to mitigate discrimination risk
• All testing must be conducted in a way that protects employee confidentiality
o Consider confidentiality of records
• Testing should be conducted by a medical professional
o HR or shift supervisors are not recommended roles to conduct this testing
• Timing between testing and results
o Determine if employees will be allowed into work or need to wait until the results are back. Employers may have to compensate employees for this time under applicable labor laws.
• Determine what type of consent is needed and how to document before performing COVID-19 testing
• Determine procedures relating to employee’s refusal of COVID-19 testing
• Understand the type of tests and their accuracy, per the EEOC guidance
o Many tests are revealing higher than desired rates of false positives and / or false negatives
• Determine the conditions that must be present for employees to return to work, following applicable CDC guidance.

Conclusion: Performing a COVID-19 risk assessment is advised prior to adopting a testing protocol. The factors above, and others as identified by each unique facility, should be performed by a multi-disciplinary team of HR, legal, environmental, people and product safety, Further, it is critically important for employers to develop, implement, monitor and verify policies that are key in protecting employee health and safety, including social distancing, ensuring employees stay home when symptomatic, following personnel hygiene practices including hand-washing, providing sanitizers, providing PPE, and cleaning and disinfecting of frequently touched surfaces.

Contact Matrix Sciences if you have additional questions or would like help with COVID-19 risk assessment and policies.