Before You Test Employees, You’ll Need an EEOC Compliant Policy:

Here's What You Need to Know about Employee COVID-19 Testing

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Policy Guidelines for COVID-19 PCR Testing of Employees

Employer-mandated testing is permitted during this pandemic. In statements available on their website the Equal Employment Opportunity Commission has determined that as long as we are in a pandemic (a determination made by the World Health Organization), “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.” The EEOC further states that any test must be “accurate and reliable,” and that employers can assess accuracy and reliability by consulting guidance from the U.S. Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC), and other public health authorities.

EEOC Guidance on Employee COVID Testing:


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?

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.

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. Accordingly, says the EEOC and CDC, employers should be diligent regarding prevention policies in the workplace, even after testing all of their employees. Furthermore, employers should, if possible, consider administering several rounds of testing. Although not explicitly stated, the EEOC’s testing guidance condones multiple rounds of testing given the realities of virus contraction. It also discourages employers from adopting testing protocols that excuse individuals who test negative from future testing.

Regarding the use of Rapid Antibody (not Antigen) Tests and others that we now know to be unreliable:
It is the company’s responsibility to ensure that whichever test they elect to administer has been deemed 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. Using a rapid antibody test (these are “fingerstick tests), which are now widely known and reported as unreliable and inaccurate does not meet this standard and will create risk and liability for the employer.

You must have a company policy that conforms to the following:

Company policies for mandatory testing must be non-discriminatory, and consistent. If an employer elects to employ a testing program, it should adopt a written policy that describes (at a minimum) the circumstances under which testing will be required or offered, the consequences of a positive test result, and the employer’s procedures for maintaining as confidential the results of any test.

You must have a company policy that conforms to the following:

Company policies for mandatory testing must be non-discriminatory, and consistent. If an employer elects to employ a testing program, it should adopt a written policy that describes (at a minimum) the circumstances under which testing will be required or offered, the consequences of a positive test result, and the employer’s procedures for maintaining as confidential the results of any test.

HIPAA protected employee health information and COVID-19 Workplace Testing:

The EEOC has said that employers may maintain COVID-19-related medical information in existing medical files. If an employee tests positive or has symptoms, an employer may inform persons with a need to know that the employee is unable to work and is being placed on leave to quarantine and, if applicable, will be working from home. Employers should not disclose the employee’s symptoms, test results, or health status to co-workers or other colleagues absent the employee’s consent.
Pursuant to EEOC guidance under the Americans with Disabilities Act (ADA), all medical information about employees should to be stored separately from their personnel file and access to this confidential information should be limited.

HIPAA protected employee health information and COVID-19 Workplace Testing:

The EEOC has said that employers may maintain COVID-19-related medical information in existing medical files. If an employee tests positive or has symptoms, an employer may inform persons with a need to know that the employee is unable to work and is being placed on leave to quarantine and, if applicable, will be working from home. Employers should not disclose the employee’s symptoms, test results, or health status to co-workers or other colleagues absent the employee’s consent.
Pursuant to EEOC guidance under the Americans with Disabilities Act (ADA), all medical information about employees should to be stored separately from their personnel file and access to this confidential information should be limited.

OSHA Guidance:

Under OSHA's recordkeeping requirements, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if:
• The case is a confirmed case of COVID-19, as defined by the Centers for Disease Control and Prevention (CDC);[2]
• The case is work-related as defined by 29 CFR § 1904.5;[3] and
• The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.[4]

CDC Guidance:

Symptom-based strategy. Exclude from work until:
• At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,
• At least 10 days have passed since symptoms first appeared
Test-based strategy. Exclude from work until:
• Resolution of fever without the use of fever-reducing medications and
• Improvement in respiratory symptoms (e.g., cough, shortness of breath), and
• Negative results of an FDA Emergency Use Authorized COVID-19 molecular assay for detection of SARS-CoV-2 RNA from at least two consecutive respiratory specimens collected ≥24 hours apart (total of two negative specimens)[1]. See Interim Guidelines for Collecting, Handling, and Testing Clinical Specimens for 2019 Novel Coronavirus (2019-nCoV). Of note, there have been reports of prolonged detection of RNA without direct correlation to viral culture.


Which COVID Test to Use:

Currently, there is no Food and Drug Administration (FDA)-approved COVID-19 test. Instead, FDA is issuing emergency use authorizations (EUA) for the marketing and use of authorized commercial test kits and laboratory developed tests (LDT) to diagnose COVID-19 or identify the presence or absence of antibodies while there are no adequate, approved, and available alternatives. FDA is also exercising enforcement discretion with respect to the marketing and use of certain COVID-19 tests pending an EUA request or, in some cases, without the laboratory or test manufacturer ever requesting an EUA.
Employers should ensure that any laboratory or vendor contracted to perform COVID-19 tests on employees holds appropriate Clinical Laboratory Improvement Amendments (CLIA) certification (or is licensed in a state that maintains certification standards equivalent to or more rigorous than CLIA) to perform clinical testing, or produces test kits, that can be relied upon for clinical decision-making.

PCR Tests:
PCR tests meet the EEOC and CALOSHA standards and are the most accurate of testing technologies for detection of a virus. They are the gold standard for testing and appropriate for all people and uses. PCR tests must be sent to a lab for results leaving employers to decide whether to send their team back to work, knowing some may be infected, or shutter for the one to three days it takes for results to be returned by the lab.

If testing under the November 30, 2020 CALOSHA directive PCR testing is not recommended unless a business intends to shutter while awaiting test results.

Rapid Antigen Tests:
Rapid Antigen Tests meet the EEOC and CALOSHA standards are the second most accurate and reliable of tests available and are at most two percentage points less accurate than a PCR. They are in some ways a better option for employee testing because results are produced in real time and employers can immediately root out infected employees and continue with the workday knowing their tam is safe.
If testing under the November 30, 2020 CALOSHA standard using Rapid Antigen Testing is a more effective standard for rooting out infected workers and returning to zero cases because of their ability to produce immediate results and therefore allow employers to send infected employees home rather than back to work alongside others they will likely infect.

*Choosing a vendor that works with accredited labs using US made tests should provide an employer with a defensible policy that meets EEOC criteria for using “accurate and reliable tests.”

Serum Antibody Testing:
To date, the EEOC has not authorized employers to conduct mandatory antibody testing of employees under any circumstances. The EEOC’s non-binding guidance concerning viral testing relies on the assumption that the testing will identify employees who may pose a direct threat to others. Even when effective, antibody testing only identifies employees who can return to the workplace without putting their own health (or potentially the health of others) at risk.

ADA-COMPLIANT EMPLOYER PRACTICES FOR PANDEMIC PREPAREDNESS:

The following Questions and Answers are designed to help employers plan how to manage their workforce in an ADA-compliant manner before and during a pandemic.

  1. Before an influenza pandemic occurs, may an ADA-covered employer ask an employee to disclose if he or she has a compromised immune system or chronic health condition that the CDC says could make him or her more susceptible to complications of influenza?
    No. An inquiry asking an employee to disclose a compromised immune system or a chronic health condition is disability-related because the response is likely to disclose the existence of a disability. The ADA does not permit such an inquiry in the absence of objective evidence that pandemic symptoms will cause a direct threat. Such evidence is completely absent before a pandemic occurs.
  1. Are there ADA-compliant ways for employers to identify which employees are more likely to be unavailable for work in the event of a pandemic?

Yes. Employers may make inquiries that are not disability-related. An inquiry is not disability-related if it is designed to identify potential non-medical reasons for absence during a pandemic (e.g., curtailed public transportation) on an equal footing with medical reasons (e.g., chronic illnesses that increase the risk of complications). The inquiry should be structured so that the employee gives one answer of "yes" or "no" to the whole question without specifying the factor(s) that apply to him. The answer need not be given anonymously.

  1. May an employer require new entering employees to have a post-offer medical examination to determine their general health status?
    Yes, if all entering employees in the same job category are required to undergo the medical examination and if the information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.

Example A: An employer in the international shipping industry implements its pandemic plan when the WHO and the CDC confirm that a pandemic may be imminent because a new influenza virus is infecting people in multiple regions, but not yet in North America.

Much of the employer’s international business is in the affected regions. The employer announces that, effective immediately, its post-offer medical examinations for all entering international pilots and flight crew will include procedures to identify medical conditions that the CDC associates with an increased risk of complications from influenza. Because the employer gives these medical examinations post-offer to all entering employees in the same job categories, the examinations are ADA-compliant.

  1. May an employer rescind a job offer made to an applicant based on the results of a post-offer medical examination if it reveals that the applicant has a medical condition that puts her at increased risk of complications from influenza?

No, unless the applicant would pose a direct threat within the meaning of the ADA. A finding of "direct threat" must be based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available evidence such as objective information from the CDC or state or local health authorities. The finding must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job, after considering, among other things, the imminence of the risk; the severity of the harm; and the availability of reasonable accommodations to reduce the risk. Before concluding that an individual poses a direct threat, the employer must determine whether a reasonable accommodation could reduce the risk below the direct threat level.

  1. May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
    Yes. The CDC states that employees who become ill with symptoms of influenza-like illness at work during a pandemic should leave the workplace. Advising such workers to go home is not a disability-related action if the illness is akin to seasonal influenza or the 2009 spring/summer H1N1 virus. Additionally, the action would be permitted under the ADA if the illness were serious enough to pose a direct threat. *Applying this principle to current CDC guidance on COVID-19, this means an employer can send home an employee with COVID-19 or symptoms associated with it.
  1. During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?

ADA-covered employers may ask such employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
If pandemic influenza is like seasonal influenza or spring/summer 2009 H1N1, these inquiries are not disability-related. If pandemic influenza becomes severe, the inquiries, even if disability-related, are justified by a reasonable belief based on objective evidence that the severe form of pandemic influenza poses a direct threat.

*Applying this principle to current CDC guidance on COVID-19, employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

  1. During a pandemic, may an ADA-covered employer take its employees’ temperatures to determine whether they have a fever?
    Generally, measuring an employee’s body temperature is a medical examination. If pandemic influenza symptoms become more severe than the seasonal flu or the H1N1 virus in the spring/summer of 2009, or if pandemic influenza becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature.

However, employers should be aware that some people with influenza, including the 2009 H1N1 virus *or COVID-19, do not have a fever.
*Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees' body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.

  1. When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?

No. These would not be disability-related inquiries. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.
*Similarly, with respect to the current COVID-19 pandemic, employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.

  1. During a pandemic, may an ADA-covered employer ask employees who do not have influenza symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to influenza complications?
    No. If pandemic influenza is like seasonal influenza or the H1N1 virus in the spring/summer of 2009, making disability-related inquiries or requiring medical examinations of employees without symptoms is prohibited by the ADA. However, under these conditions, employers should allow employees who experience flu-like symptoms to stay at home, which will benefit all employees including those who may be at increased risk of developing complications.(33)

If an employee voluntarily discloses (without a disability-related inquiry) that he has a specific medical condition or disability that puts him or her at increased risk of influenza complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume that all disabilities increase the risk of influenza complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).

If an influenza pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic influenza.(34) Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of influenza complications.
10. May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic?

Yes. Telework is an effective infection-control strategy that is also familiar to ADA-covered employers as a reasonable accommodation.
In addition, employees with disabilities that put them at high risk for complications of pandemic influenza may request telework as a reasonable accommodation to reduce their chances of infection during a pandemic.

  1. During a pandemic, may an employer require its employees to adopt infection-control practices, such as regular hand washing, at the workplace?

Yes. Requiring infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal, does not implicate the ADA.

  1. During a pandemic, may an employer require its employees to wear personal protective equipment (e.g., face masks, gloves, or gowns) designed to reduce the transmission of pandemic infection?

Yes. An employer may require employees to wear personal protective equipment during a pandemic. However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, or gowns designed for individuals who use wheelchairs), the employer should provide these, absent undue hardship.

  1. May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?

No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII ("more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA).(36)

  1. During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?

Yes. An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.

  1. During a pandemic, may an employer ask an employee why he or she has been absent from work if the employer suspects it is for a medical reason?

Yes. Asking why an individual did not report to work is not a disability-related inquiry. An employer is always entitled to know why an employee has not reported for work.

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