Implications of New EEOC Guidance on Employers Requiring COVID-19 Testing

Background.  The EEOC has a role in the novel coronavirus pandemic because it enforces anti-discrimination laws, including the Americans with Disabilities Act (“ADA”).  The ADA substantially limits an employer’s ability to make medical inquiries and conduct medical examinations, including actions such as taking employees’ temperatures or requiring them to provide body fluid or other samples for testing.  However, there is an exception that applies when employers have a reasonable belief that employees have a medical condition that poses a “direct threat” to themselves or to others.

COVID-19 testing is now allowed.  As the coronavirus pandemic has progressed, the EEOC has repeatedly updated its guidance regarding what medical inquiries and medical examinations employers can require.  On April 23, 2020, the EEOC updated its guidance to allow employers to require a COVID-19 test before permitting employees to enter the workplace.  This follows previous guidance issued March 17, 2020 allowing employers to take employees’ temperatures during the novel coronavirus pandemic.

Implications of COVID-19 testing for employers.

  • The test administered must be safe and accurate, and such tests are currently in short supply.
  • Who will pay for cost of the test and whether employees will be paid for time spent traveling to a test site and for time spent getting tested should be determined prior to requiring testing.
  • The decision on who to test must be “job related and consistent with business necessity.”  For example, testing all employees who enter the workplace because an employee with COVID-19 would be a direct threat to the health of others is acceptable.  Being selective in who to test (e.g., hourly workers but not salaried workers) would not be acceptable unless the determination was “job related and consistent with business necessity.”  Testing based on criteria such as age, national origin, or parental status would not be acceptable.
  • Even if accurate, a negative test is only a snapshot in time.  An employee who tests negative today could have COVID-19 tomorrow.
  • If undertaken, testing should be part of a broader structure of policies and procedures for maintaining a safe workplace, not an ad hoc decision.
  • If employees are covered by a collective bargaining agreement, COVID-19 testing would be a subject of bargaining.
  • Public sector employees in Washington State have a right to privacy that requires balancing the government’s “compelling interest” in testing “based in the necessities of national or community life such as clear threats to public health, peace, and welfare.” Robinson v. City of Seattle, 102 Wn. App. 795, 10 P.3d 452, 467 (2000) (drug testing).  Thus, any testing program for public sector employees should document that the employees need to be tested because their duties will genuinely implicate public safety. 10 P. 3d at 470.

Reasonable accommodations.  The updated EEOC guidance also answers questions about accommodating employees at high risk for complications of COVID-19, accommodating employees with existing mental health conditions that are exacerbated by the novel coronavirus pandemic, and modifying accommodations that employers had in place prior to the pandemic because the accommodations do not apply to the employees’ current work environment or because the accommodations now place an undue burden on the employer.

More changes likely as employees return to work.  The EEOC recognizes the changing dynamics of the pandemic, and it has emphasized that “The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19  . Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

The EEOC’s updated guidance is online at https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=.

Please keep in mind that the above is an overview of a complex topic that is constantly changing, and that the information in this email may become outdated very quickly.  If you have a specific concern, you should seek legal advice and not rely on this article.  For more information, contact ksutherland@omwlaw.com in our Seattle office or emccool@omwlaw.com or gsparks@omwlaw.com in our Wenatchee office.