Can employers test employees for COVID-19? Until recently, this was a debatable question in regards to discrimination and the Americans with Disabilities Act.
In a recent update to its core employer guidance on COVID-19, the U.S. Equal Employment Opportunity Commission (EEOC) confirmed that employers can test their workers for COVID-19 before allowing them to enter the worksite.
Returning To Work and COVID-19 Testing
At issue is the Americans with Disabilities Act (ADA) anti-discrimination clauses, which would have prohibited employers from testing employees for COVID-19 prior to the pandemic. However, the EEOC has determined that infected employees "pose a direct threat to the health of others" in the workplace. As a result, the agency has allowed that testing employees for COVID-19 is sufficiently "job related and consistent with business necessity" and allowable under the ADA.
The EEOC's guidance definitively advises employers that they may take steps to screen employees for COVID-19 because an individual with coronavirus poses a direct threat to the health of others, which means that an employer can administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
According to an article from Seyfarth Shaw LLP,
"Though the EEOC gives employers the go-ahead to move forward with testing, the guidance also issues a few notes of caution. First, the Commission reminds employers that they should ensure that the tests are accurate and reliable, which can be accomplished by reviewing guidance from the U.S. Food and Drug Administration, the CDC, or other public health authorities about what tests may be considered safe and accurate. Second, the EEOC cautions that some tests may cause false-positives or false-negatives. Finally, the Commission warns that a negative test does not mean the employee will not acquire the virus later, so employers should continue to implement and follow social distancing and safety protocols."
Employers should take note that the EEOC's new guidance does not require them to conduct COVID-19 testing, but does permit it. Also, the guidance does not speak to COVID-19 antibody testing.
RTW While Maintaining a Safe and Healthy Workplace
Returning to work in California is underway as various state government restrictions are gradually lifted. Employers are advised to be aware of California's Confidentiality of Medical Information Act (CMIA), which requires California employers to obtain written authorization before disclosing medical information obtained from a provider of health care, health care service plan, pharmaceutical company, or contractor.
Updated information can be accessed from the State of California's Labor and Workforce Development Agency here: https://www.labor.ca.gov/coronavirus2019/
In addition, an update page at CDFLaborLaw.com notes that,
"California’s DFEH has not yet weighed in on the issue of required Covid-19 testing, but it seems likely the DFEH will follow the lead of the EEOC on this issue (as it previously did on the issue of whether temperature checks are permissible). Employers conducting required Covid-19 testing are cautioned to maintain the confidentiality of test results, to compensate employees for all time and expense associated with participating in required testing, and to make sure that their CCPA notices disclose to employees that health information will be collected as part of the company’s efforts to provide a safe workplace and prevent individuals with Covid-19 from being in the workplace while potentially contagious."
As of this week, California's efforts to re-open the state and allow for businesses to return to work had entered the second of four phases, according to Governor Newsom.
A May 19, 2020 article from KRON4.com noted,
"While the Bay Area moves into Phase 2 of California’s four-stage reopening plan, Gov. Gavin Newsom on Monday suggested that the rest of the state could be just weeks away from Phase 3 during the coronavirus pandemic.
'Phase 3 is not a year away. It’s not 6 months away. It’s not even three months away. It may not even be more than a month away,' Newsom said at his daily press briefing, this one in Napa Valley. 'We just want to make sure we have a protocol in place to secure customer safety, employee safety and allow the businesses to thrive in a way that is sustainable.'
According to the guidelines, Phase 3 of reopening involves resuming operations at businesses that are considered higher-risk because people must be in close proximity with each other and social distancing will be extremely difficult if even possible. These businesses include hair and nail salons, barbershops, gyms, movie theaters, and sporting events with no live audiences."
Your Partners for Effective Workforce Management
HR staff have demanding roles that include recruiting, hiring, and working to retain employees. In addition, HR employees are responsible for other functions such as employee development, payroll management, employee records compliance, and managing employee benefits.
The current situation with the coronavirus pandemic has presented many additional and unanticipated issues and challenges.
Outsourcing is increasingly becoming a cost-effective and strategic option. Accuchex can help you in managing your HR needs, payroll processes, and staying on top of compliance demands.
Get your Free Download: Payroll Outsourcing Guide to help you make an informed decision or call Accuchex Payroll Management Services at 877-422-2824.