EEOC: Employers Can Screen for COVID-19

​The Equal Employment Opportunity Commission (EEOC) updated its guidance on April 23 on the Americans with Disabilities Act (ADA) and coronavirus, explaining that employers may screen employees for COVID-19. Any mandatory medical test must be job-related and consistent with business necessity, the EEOC explained.

"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," the agency stated. Consequently, an employer may administer COVID-19 testing to employees before they enter the workplace.

The tests should be accurate and reliable, the agency added, noting that employers should review guidance from the Food and Drug Administration and U.S. Centers for Disease Control and Prevention and check updates.

"Employers may wish to consider the incidence of false positives or false negatives with a particular test," the EEOC added. "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."

The EEOC stated that employers still should require that employees engage in social distancing and regular handwashing to the greatest extent possible.

Even before the April 23 update, Chai Feldblum and Sharon Masling, attorneys with Morgan Lewis in Washington, D.C., had said that testing an employee would follow the same logic as taking an employee's temperature.

Questions about testing are "increasingly on the minds of employers," said Christopher Durham, an attorney with Duane Morris in Philadelphia. 

Considerations for Testing

Durham said some EEO parameters employers should have in mind when considering whether to screen employees for COVID-19 are:

• Just as with temperature screening, screening/testing for COVID-19 must be conducted on a nondiscriminatory basis, which likely means that all employees entering the worksite must be tested.
• Assuming the results of such testing are retained, they need to be retained as confidential medical records according to the ADA's requirements.
• Any screening, test or inquiry that is broader than necessary to address the potential direct threat is prohibited.
• Although unlikely, it is possible that an employee could have a medical condition that could require the employer to determine whether it can provide the employee with an accommodation, such as making available an alternative testing method to the (likely nasal swab) method being used.
• Employers will need to consider how to handle an employee's refusal to submit to a test. For example, the employer could bar access to the worksite for an employee who refuses to cooperate.

He said that other considerations for employers include:

• Being aware that there may be an obligation under wage and hour laws to pay employees for time spent waiting to be tested, as well as time spent waiting for the results of the test, assuming the employee will not be admitted to the workplace until the employer has the results.
• Requiring employees to consent in writing to the screening, including, but not limited to, acknowledging that the test is not a diagnostic test.
• Exercising care in selecting a test to use, particularly in light of well-documented issues with test accuracy.
• Determining when and under what conditions an employee who tests positive for COVID-19 will be able to return to the workplace. For example, is a subsequent negative test sufficient? Two subsequent negative tests?
• Weighing the implications of a positive test result as it relates to addressing potential exposure in the workplace (e.g., if the employee was at work in the days leading up to the date of the positive test).
  

Diagnostic and Serology Testing

Diagnostic testing (for active COVID-19 infections) and serology testing (for antibodies to the virus) are a current focus of public health agencies and are undergoing rapid development and attempted deployment while a vaccine is in development, explained Jennifer Rubin, an attorney with Mintz in San Diego. Government regulators are also focused on contact tracing, which will be an important part of reopening the economy, she noted.

"It is too soon to tell whether diagnostic or serological testing will be mandated for all or nonessential employers, in part due to the lack of plentiful, reliable and accessible tests," she said.

"Most individuals currently lack access to diagnostic testing, and unlike diagnostic testing, existing scientific data has not proven the efficacy of serology testing," she cautioned.

"The EEOC might still be grappling with the more difficult issues around serology testing," Feldblum and Masling said, noting that the agency has not yet addressed the legality of using serology tests. 

Undue Hardship During a Pandemic

In an April 17 update to the same guidance, the EEOC clarified what constitutes an undue hardship preventing an employer from reasonably accommodating an individual with a disability in a pandemic. The agency stated that "it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be telecommuting."

In addition, the EEOC said, "The sudden loss of some or all of an employer's income stream because of this pandemic is a relevant consideration. Also relevant is the amount of discretionary funds available at this time—when considering other expenses—and whether there is an expected date that current restrictions on an employer's operations will be lifted (or new restrictions will be added or substituted). These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic."

The factors impacting what constitutes an undue hardship are going to be motivated by a vastly different operational and financial reality for some businesses than was the case prior to the pandemic, said Linda Hollinshead, an attorney with Duane Morris in Philadelphia. 

For example, if an employee has a disability that prevents the employee from completing certain tasks, in a typical situation, the employer will look to see which other employees are available to pick up on those tasks on the employee's shift. In a pandemic, with fewer employees working on each shift in order to implement social distancing protocols, others may not be available to pick up those tasks, she noted.

"This does not mean that the employer does not have a duty to accommodate, it just means that the employer may not have an obligation to provide the requested accommodation," she said. 

Historically, it has been difficult for employers, especially large employers, to prove undue hardship as many accommodations require little expenditure when measured against an employer's overall revenues, said Mary Ruth Houston, an attorney with Shutts & Bowen in Orlando, Fla. "The new guidance suggests that current financial constraints can be taken into account. Nonetheless, the guidance also cautions that this does not mean that employers can simply reject any accommodation for perceived undue hardship."

David Fram, director of ADA services for the National Employment Law Institute in Golden, Colo., said, employers should be cautious about using undue hardship as a defense for not providing a reasonable accommodation, even in a pandemic. Once undue hardship is relied upon, a plaintiff can find out all the other places an employer spent its resources, which can leave an employer vulnerable in litigation.