Federal Agency Updates COVID-19 Guidance Including Testing Guidelines

In March 2020, the Equal Employment Opportunity Commission (EEOC) released guidance addressing various Frequently Asked Questions (FAQs) concerning COVID-19 issues. Since the original release, the FAQs have been updated on a near-monthly basis with new additions. Overall, the guidance has focused on disability-related inquiries, confidentiality, hiring, and reasonable accommodations under the Americans with Disabilities Act (ADA), as well as issues under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). In its latest FAQ update, posted on September 8^th, 2020, the EEOC covers some more practical questions employers have on several COVID-19 issues, such as testing, telecommuting, and sharing employee medical information.

Workplace COVID-19 Testing

As overall COVID-19 testing has expanded, many employers have been working on establishing testing protocols to keep employees and the public safe. There are still questions, however, if employers are permitted to test, particularly considering the general ADA requirement that any mandatory medical test of employees has to be “job related and consistent with business necessity.” In previous guidance, the EEOC has already confirmed that employers may opt to administer COVID-19 testing to employees before initially permitting them to enter the workplace. In the updated FAQs, released in September 2020, the EEOC clarifies that periodic COVID testing to determine if an employee poses a direct threat to others is permissible. Also, in the most recent FAQs, the EEOC addresses updates to guidance as released by the Centers for Disease Control and Prevention (CDC). Specifically, the EEOC states that employers who administer COVID-19 viral testing under current CDC guidance will meet the ADA’s “business necessity” standard. Employers, however, also need to follow recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate.

Employee Health Screenings

Since the beginning of the COVID-19 pandemic, many workplaces have instituted screening programs to keep people safe and healthy. These programs normally consist of temperature checks and asking questions about COVID-19 symptoms and travel prior to allowing them entry to the facilities. The EEOC, however, has received questions as to whether or not they can flat out ask an employee if they have been tested for COVID-19. According to the recent guidance, yes, employers may ask that question. The EEOC, however, has not clearly stated if an employer may ask if the test was positive or negative. Due to the fact that COVID-related requests are based on the theory of a “direct threat,” asking employees about COVID-19 testing does not extend to employees who are teleworking and not physically interacting with coworkers or the public. Asking employees about COVID-19 testing also does not extend to whether the employee’s family members have COVID-19 or symptoms associated with COVID-19. The EEOC did clarify though that employers may ask employees whether they have had contact with anyone diagnosed with COVID-19 or who may have symptoms associated with the disease.

Focusing on a Single Employee

 The EEOC also addressed whether employers may focus screening efforts on a single employee. In this case, the employer must have a reasonable belief that this person might have the disease, such as a display of COVID-19 symptoms. However, employees working regularly or occasionally onsite and who report feeling ill or who call in sick may be asked questions about their symptoms as part of workplace screening for COVID-19, according to the EEOC. Some employees may refuse to participate in employer-administered screening programs. In that case, the EEOC states that the ADA allows employers to bar employees from physical presence in the workplace if they refuse to have their temperature taken or refuse to confirm whether they have COVID-19, symptoms associated with COVID-19, or have been tested for COVID-19.

Confidentiality

According to the latest guidance, employers need to remember that the ADA requires all employee medical information to be maintained confidentially. If an employer discovers that an employee has COVID-19, the EEOC FAQs make clear that managers may report this information to appropriate persons in the organization in order to comply with public health authority guidance. It also would not be a violation of the ADA if a worker reports to his or her manager the COVID-19 status of a coworker in the same workplace. Employee health confidentiality also extents to those who are teleworking and not necessarily in the physical workplace.