COVID-19 Testing and the Workplace
Throughout the COVID-19 pandemic the guidance being issued by federal and states officials has continued to evolve and change. The issue of testing is no exception.
Earlier this week, the State of Michigan announced that the testing criteria for COVID-19 has been expanded. According to the State, testing will not only be available for those individuals with symptoms but has been expanded to include essential workers still reporting to work in person whether they have symptoms or not.
The State recommended that individuals included in this expanded classification contact their health care provider or call a testing site. The State has even set up a website identifying possible testing systems at www.Michigan.gov/CoronavirusTest. Interested persons are encouraged to first contact their health care provider or testing site before going to be tested.
The U.S. Equal Employment Opportunity Commission (“EEOC”) has been actively updating its guidance regarding the Americans with Disabilities Act throughout this pandemic. For example, the EEOC had issued specific guidance allowing employers to ask their employees if they are experiencing symptoms of COVID-19 and allowing employers to conduct temperature checks.
The EEOC’s Guidance states that “[t]he EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”
Given the recent expansion by the State and the EEOC’s deference to state/local public health authorities, employers were inquiring whether the EEOC would approve testing by employers of its essential workforce. On April 23, 2020, the EEOC updated its guidance and addressed this question.
Specifically, the most recently issued guidance by the EEOC on April 23, 2020 now states that:
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.
Although the recent guidance issued by the State and the EEOC appears to give the green light, at least as to certain testing, employers still need to exercise caution before requiring their employees be tested. Employers seeking to require testing still face a host of other possible issues. First, employers need to specifically define who will be tested to ensure consistency and avoid discrimination claims. Second, employers have to specifically identify what type of testing will be required. The current EEOC Guidance only addresses COVID-19 testing and not necessarily the expanded antibody testing. Third, employers should identify a person or persons that will address this on behalf of the employer and ensure confidentiality of any testing results. Fourth, the employer will need to ensure that the testing that is administered is reliable, based on guidance from the appropriate agencies.
As explained by the EEOC employers need to recognize the limitations in testing in 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.” And regardless of testing, appropriate infection controls still need to be in place and followed.
Employers are advised to consult with their legal counsel before implementing testing requirements in its workforce.