On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance concerning the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act and how employers may respond to the public health emergency caused by COVID-19. The EEOC makes clear that while the laws will continue to apply during the present public health emergency, the EEOC will not interfere with or prevent employers from following the guidance issued by the Centers for Disease Control (“CDC”) or by state or local public health authorities concerning steps to respond to COVID-19.
Most notably, the new guidance suggests that employers may test employees for COVID-19 if the employer follows certain requirements. In response to the question of whether an employer may administer a test to detect COVID-19 before permitting employees to enter the workplace, the guidance provides:
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” 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. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
The guidance further states that employers need to ensure that the tests are safe, accurate, and reliable, and that employers should consider the incidence of false-positives or false-negatives associated with a particular test in order to determine whether such a test is, in fact, reliable.
As noted by the guidance, under the ADA, employers may not require medical examinations of current employees unless the examination is job-related and consistent with business necessity. Generally, a medical examination will meet this standard when an employer has a reasonable belief, based on objective evidence that an employee’s ability to perform essential job functions will be impaired by a medical condition or an employee will pose a “direct threat” due to a medical condition. In this context, “direct threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The employer must determine that an employee poses a “direct threat” based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. In determining whether an individual would pose such a threat, the employer should consider the following factors:
(1) The duration of the risk;
(2) The nature and severity of the potential harm;
(3) The likelihood that the potential harm will occur; and
(4) The imminence of the potential harm.
The EEOC guidance suggests that employers may test their employees for COVID-19 before the employees enter the workplace. However, given that there is a shortage of testing kits and supplies and that processing such tests requires, at minimum, several days, screening each employee every day is not feasible. A more likely scenario is that an employer tests some or all employees, who have been away from work, either because they were teleworking or deemed non-essential, prior to those employees returning to the workplace.
Employers should note that, because employers must perform an individualized assessment as to whether the medical exam is job-related and consistent with a business necessity in each case, an across-the-board mandatory testing policy for all employees that does not provide for exceptions (e.g., no contact with any other individual in the past 14 days), may be impermissible. Employers who elect to adopt such a testing policy and protocol should therefore design such policy and protocol to allow for exceptions where an individual employee may not need to be tested.
The EEOC previously provided guidance that employers may screen for symptoms of COVID-19 and take temperatures of employees. There, the EEOC made clear that the employer must ensure that it maintains records of screenings confidentially. The same requirement would apply where an employer implements a policy for screening employees for COVID-19. Additionally, in order to receive and use the results of a COVID-19 test, an agency must obtain a valid Confidentiality of Medical Information Act (CMIA) waiver from the employee being tested. The CMIA has precise requirements for such waivers, all the way down to the size of the font (14 point.)
California law also governs the question of whether medical examinations are permissible. The Department of Fair Employment and Housing (“DFEH”), the state agency primarily responsible for enforcing employment laws in California, however, has not issued any guidance related to employer-required testing for COVID-19 or commented on the guidance provided by the EEOC. However, like the ADA, the Fair Employment and Housing Act (“FEHA”) also authorizes employers to perform medical examinations where the employer can demonstrate that the examination is “job related and consistent with business necessity.” Although the DFEH has not issued guidance, the analysis under the FEHA is sufficiently similar to the analysis under the ADA such that the DFEH would likely arrive at a similar conclusion when balancing public health and safety against the intrusion into personal privacy.
Under the EEOC guidance, employers may require testing of employees returning to work after having COVID-19 or exhibiting symptoms of COVID-19 if the employer determines under an individualized assessment that the test is job-related and consistent with a business necessity. While the DFEH has not issued guidance, given the public health emergency caused by the COVID-19 pandemic and the threat to workplace health safety that COVID-19 presents, it is likely that the DFEH will come to the same conclusion.
LCW will monitor this evolving situation and will update you if the DFEH issues guidance. Additionally, LCW attorneys can help you with questions about adopting a testing policy.