| |
Source: AGSAFE, 4/24/20
Yesterday, April 23, 2020, the
EEOC issued an updated guidance on COVID-19, found here. The guidance answers a number of questions regarding the EEOC’s position in terms of questioning employees about symptoms, requiring doctor’s notes, and other issues. The update yesterday addressed whether employers may actually test employees for the COVID-19 virus and remain in compliance with the Americans With Disabilities Act as follows: A.6. May
an employer administer a COVID-19 test (a test to detect the presence of the
COVID-19 virus) before permitting employees to enter the workplace? 4/23/20 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. Consistent with the ADA standard, employers should ensure that the
tests are accurate and reliable. For example, employers may review guidance from
the U.S. Food and Drug Administration about what may or may not be considered
safe and accurate testing, as well as guidance from CDC or other public health
authorities, and check for updates. Employers may wish to consider the
incidence of false-positives or false-negatives associated with a particular
test. Finally, 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. Based on guidance from medical and public health authorities,
employers should still require - to the greatest extent possible - that
employees observe infection control practices (such as social distancing,
regular handwashing, and other measures) in the workplace to prevent
transmission of COVID-19. Thus, if employers are able to obtain testing materials,
and are able to administer them in a manner that protects privacy, those that
choose to do so may do so without violating the ADA. Note that, as yet,
California has not issued a similar guidance under state law, so it is not
entirely clear if California would reach the same result. As we have previously reported, the EEOC said that taking an employee’s temperature is allowed since the very beginning of this pandemic. This ability to now add testing, if you choose to do so, allows even more opportunity to help keep employees safe. Continue to check the COVID-19 Resources webpage as we
provide daily updates. If you have any questions, do not hesitate to contact
AgSafe at 209-526-4400 or safeinfo@agsafe.org.
|
