As businesses start to re-open, the Equal Employment Opportunity Commission (EEOC) has announced that employers can test returning employees for COVID-19 before allowing them into the workplace.
Due to the fact that a worker with the illness constitutes a “direct threat” to others, EEOC says COVID-19 testing is allowed under the Americans With Disabilities Act (ADA) requirements that mandatory medical tests be “job related and consistent with business necessity.”
The commission stressed that when performing COVID-19 testing, employers must make sure they are accurate and reliable. It said employers should follow guidance from the U.S. Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC) or other recognized public health authorities to determine what may or may not be considered safe and accurate testing.
For example, the FDA has issued emergency use authorizations for certain in vitro diagnostics to detect and/or diagnose COVID-19, but at this time the agency has not authorized any serology/blood tests for diagnosis or exclusion of COVID-19.
“Before choosing a test, employers should also consider the incidence of false-positives or false-negatives with that particular test,” say attorneys Travis K. Jang-Busby and H. Sarah Fan of the law firm of Gordon Rees Scully Mansukhani.
When an employee does test positive for COVID-19, the Occupational Safety and Health Administration (OSHA) recommends the following steps:
● Wherever feasible, immediately isolate individuals suspected of having COVID-19.
● Remove isolated individuals from the work site as soon as possible. Depending on the severity of the isolated individual’s illness, the employee might be able to return home or seek medical care on his or her own, but some individuals may need emergency medical services.
● Conduct environmental cleaning and decontamination of infected areas.
Ban on Discrimination Remains
The EEOC also has made it clear employers need to continue to be aware that workplace civil rights protections still apply during the Coronavirus pandemic, and will continue as well into the transition to the eventual reopening of all businesses.
The commission has made this point clear in a number of statements and guidance memos issued since the virus lockdowns began, as well as in a webinar where commission staff answered questions put to them by employers from across the country.
In efforts to settle other questions surrounding enforcement, the EEOC also emphasized that employers are still required to adhere to the ever-changing guidelines and directives issued by the CDC and state and local health authorities, note attorneys Alyson Brown and Kevin J. White of the law firm of Hunton Andrews Kurth LLP.
The commission’s Technical Assistance Questions and Answers, published on April 17, addresses what is expected in the way of reasonable accommodation for the effects of this illness under the ADA.
In it, the EEOC reiterates that an employer may still ask questions, request medical documentation and engage in an interactive process to determine whether an employee has a disability as defined by the ADA when responding to an employee’s request for accommodation under the act.
The commission also says employers may provide temporary accommodations, shorten or even forego the interactive process if there is some urgency to providing an accommodation. The employer can begin the interactive process by asking employees now if they will need a reasonable accommodation in the future when they are permitted to return to the workplace.
EEOC adds that employers should consider providing short-term accommodations with end dates related to the need for accommodation. For example, it says that an accommodation may end when an employee returns to the workplace due to changes in government restrictions limiting the number of people who may congregate.
The circumstances of the pandemic are relevant in determining whether a requested accommodation poses an undue hardship on an employer, the commission explains. Employers may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.
EEOC believes that the sudden loss of an employer’s income stream, the amount of discretionary funds available at this time, and whether there is an expected date that current restrictions on an employer’s operations will be lifted are all relevant considerations in determining whether an accommodation poses “significant expense.”
Keep in mind that pandemic-related harassment due to national origin, race or other protected characteristics is still considered a serious legal violation, according to the commission. “Employers should remind all employees that harassment and discrimination based on a protected class is against federal EEO laws,” Brown and White say. “Additionally, supervisors should be reminded of their role in watching for, stopping, and reporting any harassment or other discrimination.”
When employees are prepared to return to work, EEOC says employers can choose to act in a way consistent with the ADA as long as any screening that is implemented is in conjunction with and is consistent with advice the employer can obtain from the CDC and public health authorities for that type of workplace (and that exists at that particular time).
Employers should be especially careful not to engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and excluding returning workers, the lawyers point out.
“For example, when an employer requires returning workers to wear personal protective equipment (PPE) and an employee with a disability needs a related reasonable accommodation under the ADA or a religious accommodation under civil rights law, the employer should discuss the request and provide a modification or alternative if it doesn’t create an undue hardship,” Brown and White advise.
Live Questions and Answers
On March 27, the EEOC conducted a wide-ranging question-and-answer session during a webinar where it addressed employer questions regarding the pandemic and clarifying the commission’s previous guidance. A video of the webinar can be viewed on YouTube here.
The commission took the opportunity to clarify its recent pronouncement on how and when employers can take employees’ temperatures. Asked what other possible measures employers can take legally, the commission said all employees entering a workspace can be asked if they have COVID-19 symptoms, including cough, sore throat, fever, chills and shortness of breath.
“Employers may exclude employees with COVID-19 or associated symptoms from the workplace because their presence would pose a direct threat to health or safety,” the EEOC says, adding, “Note that employers may not ask these questions of employees teleworking as they are not physically interacting with co-workers.”
The EEOC also says the ADA allows employers to prohibit an employee’s physical presence in the workplace if that person refuses to permit the employer to take his or her temperature, refuses to answer questions about whether he or she has COVID-19, symptoms associated with the disease, or has been tested for it.
The situation can get much trickier when it comes to asking an employee whether their family members have the illness. The EEOC recommends against narrowing the question to contact with family members. “The better question from a public health and workforce management perspective is whether the employee has had contact with anyone who has been diagnosed, or has symptoms associated, with COVID-19,” the commission says.
The EEOC also notes that the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions about their family members. The ADA does not permit broad disclosure of the medical condition of a specific employee. In addition, the CDC specifically advises employers to maintain the confidentiality of workers with confirmed COVID-19.
For example, legal privacy concerns ban the employer from revealing to fellow workers that one of their colleagues is working from home or has taken leave because they have COVID-19 or are exhibiting symptoms. The employer is only allowed to simply disclose that the employee is teleworking, but cannot disclose the reason.
However, the ADA permits employers to notify public health authorities that an employee has COVID-19. This permission is because the illness poses a direct threat of substantial harm to individuals with the disease and those they are in contact with. The ADA does not preempt state, county and local laws designed to protect health from a direct threat like that posed by COVID-19, the commission stresses.
Another exception exists when an employee who must report to the workplace knows that a coworker at the same workplace has COVID-19 symptoms. “ADA confidentiality does not prevent employees from communicating to their supervisors a coworker’s symptoms,” the EEOC says.
After the employee conveys this information to the supervisor, that person should contact the appropriate officials within the company to report this information to allow them to conduct the next steps.
The Age Discrimination in Employment Act (ADEA) also means that an employer cannot exclude from the workplace an employee who is 65 years of age or older simply because they have been identified as being at higher risk of more severe illness and death if they contact COVID-19.
If the reason for an employer’s action is that the employee is 40 years or older (the age group protected by the ADEA), the employer cannot bar older employees from the workplace, place them on involuntary leave or require them to telework. “One way an employee could show that an action was based on age would be that the employer did not take similar actions against comparable workers under age 40,” the commission says.
As you might imagine, there is a lot more going on when it comes to EEOC regulation and enforcement during the Coronavirus pandemic, and the commission’s rapidly evolving guidances and actions present a constantly changing picture. We will try to keep you up to date the best we can.