Tuesday, April 28 2020
SHRM article below states EEOC states that employers can test 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:
He said that other considerations for employers include:
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.