July 2nd, 2020 | Angela Preston, SVP and Counsel, Corporate Ethics and Compliance, Sterling

EEOC Covid-19 Testing Guidance for Return to Work

To test, or not to test. That’s a question that many employers are grappling with today. During this unprecedented global pandemic, many US employers are trying to safely operate and still stay in compliance with applicable laws and regulations (see our recent blog 4 Key Legal and Regulatory Considerations to Reopen and Stay Open).

Meanwhile, the US Equal Employment Opportunity Commission (EEOC) has provided a stream of updates with guidance on Covid-19 testing, which helps clarify what’s allowed under federal equal employment laws. Here’s what you need to know.

The EEOC’s Role in Return to Work

The EEOC’s job is enforce workplace anti-discrimination laws, including:

• the Americans with Disabilities Act (ADA)
• the Rehabilitation Act (covering reasonable accommodation and non-discrimination based on disability, and rules about employer medical exams and inquiries)
• Title VII of the Civil Rights Act (which prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy)
• the Age Discrimination in Employment Act (ADEA) (which prohibits discrimination based on age, 40 or older)
• and the Genetic Information Nondiscrimination Act.

The EEOC has published guidance to ensure that safety measures taken by employers during pandemics don’t result in discriminatory practices. Much of the EEOC’s guidance can be found in a document entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act, which was updated for Covid-19. Most recently, on June 17 2020, the EEOC posted a Q&A document, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

Medical Exams and Testing

The guidance states that is considered a “direct threat’ to the safety of the workplace. Thus, temperature checks and Covid-19 viral tests meet the job-related standard, and are permissible under the ADA. Testing must be treated as confidential, and tests must be reliable and administered in a non-discriminatory way.

The EEOC clarifies, however, that antibody tests do not meet the ADA job-related standard, and the guidance states that requiring an antibody test before allowing entry to the workplace would violate the ADA.

The EEOC relies on the CDC’s Interim Guidelines that antibody test results are not known to confer immunity, and “should not be used to make decisions about returning persons to the workplace” (see A.7. of the June 17, 2020 Guidance), stating it will continue to closely monitor CDC’s recommendations, and could update the guidance at a later date if the CDC recommendations change.

Other key guidance around medical exams and the testing of employees includes:

• Employers may ask employees about whether they are experiencing symptoms of the virus. Inquiries should be limited to those symptoms identified by the CDC, and should be treated as confidential medical records
• Taking employees’ temperatures is considered a medical exam, and is permitted under the ADA standard. While logs may be kept, results need to remain confidential
• Employers may require employees to stay home or leave work if they are experiencing symptoms or are ill
• Active virus testing is permitted to determine whether an employee will be allowed in the workplace, but employers must ensure that the tests are accurate, reliable, and approved by the FDA

Pre-Employment and Hiring

The EEOC states that employers may screen job applicants for symptoms of Covid-19 after making a conditional job offer, if it does so for all entering employees in the same type of job (Section C.1. of the June 17, 2020 Guidance). This ADA rule applies regardless of whether the applicant has a disability. The same holds true for temperature-taking activity, which may occur post-conditional offer.

Offers for employment may be rescinded if a candidate has symptoms or tests positive for the virus and there is an immediate need to bring someone onboard. Likewise, start dates may be delayed if a candidate or new hire has Covid-19 symptoms and cannot safely enter the workplace. However, the EEOC cautions that while pregnant women and people over 65 may be identified as high risk, may not unilaterally postpone or withdraw job offers for those individuals.

Reasonable Accommodation

When a job can only be done in the workplace, employers need to consider reasonable accommodations for employees with pre-existing disabilities that make them at higher risk for infection (see Section D of the June 17, 2020 Guidance).

In addition, employers are encouraged to consider what accommodations might be required for an employee with a disability if and when remote/telework ends. An employer does not have to provide a particular reasonable accommodation if it poses an “undue hardship,” which means “significant difficulty or expense.” And the EEOC points out that in some instances, an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.

With respect to protecting a worker’s family members, the ADA does not require that an employer accommodate an employee based on the disability-related needs of a family member or other person with whom he or she is associated. For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential Covid-19 exposure.

Return-to-Work Screening Accommodations

The EEOC says that employers should not engage in unlawful disparate treatment based on protected characteristics in decisions related to screening and exclusion from the workplace. In some cases, that means taking temperatures reporting symptoms would be compliant if required of all of those entering the workplace (see G.1. of the June 17, 2020 Guidance).

Employees entering the workplace may request an alternative method of screening due to a medical condition, which the EEOC says is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act (see G.7. of the June 17, 2020 Guidance).

If the requested change is easy to provide and inexpensive, it may not be an issue and the employer might want to make it available to anyone who asks. But if the disability is not already known, an employer may ask the employee for information to establish that the condition is a disability and what limitations require an accommodation, requesting medical documentation to determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.

An employee may request an alternative method of screening as a religious accommodation, in which case the employer should determine if accommodation is available under Title VII.

Age, Sex, and Pregnancy

The EEOC points out that while the CDC has explained that individuals age 65 or older are at higher risk, the Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people 40 or over. As such, any person covered by the Act should not be involuntarily excluded from the workplace, even if under good intentions of protecting them from illness. While ADEA does not require reasonable accommodation, employers may want to give older employees options or flexibility (see section H.1. of the June 17, 2020 Guidance).

Caregivers of school-age children or elder family members may also be accommodated and given flexible options, as long as they are not treated differently based on sex or other protected characteristics. For example, women should not be given more or fewer options because of gender-based assumptions.

Likewise, pregnant women may not be excluded from the workplace due to higher risk of virus infection, nor may they be subject to lay-off or furlough due to being pregnant (see sections I and J of the June 17, 2020 Guidance).

Harassment Due to Race and National Origin

The EEOC encourages employers to communicate proactively to employees that fear of the virus should not be misdirected at people because of a protected class characteristic such as race or national origin. Managers need to be alert to any hostility or demeaning remarks to those perceived to be Chinese or Asian-Americans, including harassment about the origin of the virus.

In summary, here are some key take-aways:

• Medical testing for the presence of the Covid-19 virus, temperature checks, and symptom screening may be used to determine whether employees may enter the workplace
• Covid-19 testing must take into account other anti-discrimination laws, and employers may need to provide reasonable accommodations if an employee has an existing health condition or makes requests based on religion or other protected characteristics
• Covid-19 testing is allowed for pre-hire screening as well as return to work, and positive results may be the basis for delayed hire or even rescinding of an offer, depending on the circumstances
• Antibody tests do not meet the legal standard of being job-related under the ADA, and thus may not be used to determine access to the workplace at this time
• Testing and screening for the virus and symptom checks are medical records, and if they are stored, they must be treated as confidential and protected
• Return-to-work testing and Covid-19 workplace requirements may not violate age discrimination laws and cannot lead to disparate treatment of people based on sex, age, or pregnancy, even when some populations may be at a higher rate of infection.

Keep in mind that guidance from public health authorities is a moving target, and it continues to change as the Covid-19 pandemic evolves. Therefore, employers should follow the most current information available from federal and local authorities, and adapt to new government updates to maintain a safe workplace.

To stay informed on everchanging federal, state, and local laws that can impact your hiring and background screening program, visit our Compliance Updates page. Also on this page, a recap video covering the key points dscussed above.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.