EEOC Provides Guidance on COVID-19 Testing in the Workplace as Employers Prepare for Lifting of Stay at Home Orders
Screening employees and customers prior to permitting them to enter a business has become the primary method used in an effort to prevent further spread of COVID-19 in the workplace. Until recently employers were left without official guidance on the permissible extent of screening in light of laws that restrict employers from making certain medical-related inquiries, including the Americans with Disabilities Act (ADA) or the Fair Employment and Housing Act (FEHA).
On April 23, 2020 the Equal Employment Opportunity Commission (EEOC) – the agency charged with enforcing the ADA – updated its guidance related to the intersection of COVID-19 and the ADA in the workplace to address COVID-19 testing. Here are some highlights:
Tests to detect the presence of the COVID-19 Virus:
An employer may administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. This guidance is based on the principle that an employee with the virus will pose a “direct threat” to the health of others. In contrast, if a workplace is situated in such a way that an employee does not pose a direct threat to the health of others, it could be the case that testing would not be permissible.
If an employer decides to implement testing, the employer should ensure the tests are accurate and reliable. The EEOC suggests employers review guidance from the Food and Drug Administration, Centers for Disease Control & Prevention, and other public health authorities about what tests are considered safe and accurate.
An employer may require all employees to have a daily temperature check before entering the workplace and maintain a log of the results. Guidance from the Department of Fair Employment & Housing (DFEH) – the agency charged with enforcing the FEHA – is consistent, stating employers may measure body temperature “for the limited purpose of evaluating the risk that employee’s presence poses to others in the workplace as a result of the COVID-19 pandemic.” The DFEH has not yet issued guidance on testing for the actual COVID-19 virus.
Employers Must Maintain Confidentiality of Test Results and Other Medical Information:
The ADA and FEHA require all medical information about a particular employee be stored separately from the employee’s personnel file to limit access to this confidential information. An employer may store all medical information related to COVID-19 in existing medical files. This includes an employee’s statement that he/she has the disease or suspects he/she has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.
Sue M. Bendavid and Nicholas Kanter are Shareholders in our Employment Practice Group.
This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.