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TESTING EMPLOYEES FOR COVID-19
March 24, 2020


Can employers require employees to be tested for COVID-19 or subjected to temperature screenings? Yes. According to a recent release by the federal Equal Employment Opportunity Commission (EEOC), “Based on guidance of the CDC [Centers for Disease Control] and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard” that must be met under the Americans with Disabilities Act (ADA) to justify such tests or screening. However, it is important that employers who determine to require testing or screenings conduct them in a non-discriminatory manner, observe employee confidentiality requirements, and comply with other applicable state and federal workplace laws.

Americans with Disabilities Act
With the recent escalation of the COVID-19 virus to pandemic status, the EEOC’s 2009 Pandemic Guidance is now officially in effect. Although employers must still follow their duties and observe limitations imposed by the Americans with Disabilities Act (ADA) and other applicable law, the standards in a pandemic situation are somewhat more relaxed. 

The ADA prohibits employers from making disability-related inquiries or requiring medical examinations unless (1) they can show the inquiry or exam is job-related and consistent with a business necessity or (2) they have a reasonable belief, based on objective evidence, that employees have a medical condition that poses a direct threat to the health or safety of themselves or others that cannot otherwise be eliminated or reduced by a reasonable accommodation. 

The ADA defines a “medical examination” as any procedure or test that seeks information about an employee’s physical or mental impairments or health. COVID-19 tests fall directly into this definition. Temperature screenings are also considered a form of medical examination.

When determining whether an employee poses a direct threat, employers must consider the following factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood potential harm will occur; and (4) the imminence of the potential harm. In considering these factors, employers must rely on the CDC’s or another public health authorities’ assessment of the risk. In addition, determinations must be individualized based on the location and conditions of their workplaces based on the latest advice of the CDC and state or local public health assessments.

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. As noted above, based on this declaration and guidance of the CDC and public health authorities as of March 2020, EEOC has concluded that COVID-19 pandemic meets the direct threat standard. These facts, according to EEOC, “manifestly support a finding that a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.” The EEOC also cautions, however that when the CDC and state and local public health authorities revise their assessment of the spread and severity of COVID-19, such a revision “could affect whether a direct threat still exists.”

Unless specifically instructed by a public health official, regulation, or executive order, employers must maintain any test results or other related information as confidential medical records in compliance with the ADA. If test results indicate that an employee has COVID-19, employers should work with public health organizations to notify employees who may have been exposed to the virus in the workplace and should follow guidance from public health authorities in doing so. Generally, public health authorities try to avoid identifying the affected employee but might alter this practice depending on the nature of the threat. Employers must continue to provide employees reasonable accommodations under the ADA.

If employers require employees to be tested or examined by a health care professional of the employer’s choosing, then the employers must bear any cost of the testing or examinations.

As a practical matter, employers should keep in mind that a negative test result or the absence of a temperature does not necessarily mean a tested employee has not subsequently been exposed or will not become symptomatic. Employers should also keep in mind the limited availability of COVID-19 tests and that care professionals may be overwhelmed, which may limit the ability of employees to undergo testing in a short time frame. 

Separately, in its recent release, EEOC also makes clear that the ADA’s prohibitions do not interfere with or prevent employers from following the CDC’s Interim Guidance for Businesses and Employers. The CDC’s Interim Guidance does not address employee testing but provides several other recommended strategies for employers to implement at this time.

Antidiscrimination laws
Title VII of the Civil Rights Act of 1964 and state law prohibit discrimination based on race, color, national origin and other protected classifications. Employers should not make determinations about employee testing based on race or country of origin — or any other characteristic protected by federal or state antidiscrimination laws. The CDC has advised in this context: “To prevent stigma and discrimination in the workplace, use only the guidance described below [provided by the CDC] to determine the risk of COVID-19. Do not make determinations of risk based on race or country of origin, and be sure to maintain confidentiality of people with confirmed COVID-19.”

Employers should also take steps to prevent discrimination and harassment of individuals who are disabled or perceived as disabled because they are exhibiting symptoms suggestive of having contracted COVID-19. Such steps include ensuring the confidentiality of all employees’ medical information and leave details, reminding employees of anti-harassment and discrimination company policies, tamping down rumors about employees’ health or travel, and remaining vigilant about promptly responding to and investigating any complaints of harassment in the workplace.

Wage and hour issues
For employees who are not exempt from minimum wage and overtime requirements under the Fair Labor Standards Act (FLSA), time spent by such employees waiting for or undergoing testing at an employers’ request are likely entitled to pay for such time at their regular hourly rate and, if implicated, for overtime. Employees required to undergo testing or temperature screening should also be instructed to keep track of their waiting and testing time and to add that to their working time.

If you have questions about employee testing or other employment issues relating to the COVID-19 outbreak, contact Mark Wagner at mwagner@parsonsbehle.com or call 801-536-6776.

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