Loren Kean Law

Loren Kean Law

Loren Kean Law

0

0

0

0

0
0

EEOC CLARIFICATION REGARDING TESTING EMPLOYEES FOR COVID-19 Bruce E. Loren, Michael I. Kean, and Brandon J. Camilleri | Oct 20 2020

Effective September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released guidance to employers who test their employees for COVID-19. Below is a summary of the EEOC’s recent guidance, relevant CDC guidelines, and practical advice for compliance.

How the EEOC regulates COVID-19 testing.

The EEOC is responsible for enforcing federal disability laws in the U.S., including the American’s Disability Act (“ADA”). Employers with 15 or more employees must follow the ADA rules. The ADA regulates when an employer may make an inquiry into an employee’s sickness or request that an employee take a medical exam. Under the ADA, an employer may request a medical examination or inquire as to a sickness if it is “job-related and consistent with business necessity.”

EEOC recent guidance.

Prior to the recent guidance, the EEOC stated that employers could take temperature checks of employees but did not clarify as to when employers could test employees for COVID-19. Under the business necessity standard, an employer must have a reasonable belief, based on objective evidence, that an employee will pose a direct threat to customers or other employees before asking an employee to submit to a medical exam such as a COVID-19 test.

In its recent guidance, the EEOC clarified that “the ADA does not interfere with employers following recommendations by the CDC or other public health authorities regarding whether, when, and for whom testing or other screening is appropriate. Testing administered by employers consistent with current CDC guidance will meet the ADA’s ‘business necessity’ standard.” Given this guidance, employers may test employees for COVID-19 without running afoul of the ADA if they follow current CDC guidance. The EEOC also clarified that employers can test employees before allowing them to return to the workplace and periodically to determine if their presence is a threat to others.

CDC guidelines to follow when testing.

The CDC recommends using a viral test to diagnose COVID-19 and does not recommend using only an antibody test. Recently, the CDC updated its guidance to provide that asymptomatic employees, especially those in close contact with someone with COVID-19, should be tested. If an employee has been in close contact with someone with COVID-19 for 15 minutes or more, the CDC states that the employee needs to be tested. The CDC also recommends testing any employees: (a) exhibiting symptoms of COVID-19; (b) whose job functions requires them to be in close contact with customers or other employees; or (c) ending home isolation after suspected COVID-19.

Practical advice for compliance.

If an employee has been in close contact with someone infected with COVID-19 or exhibits any COVID-19 symptoms, require that the employee take a viral test before returning to work. Refer the employee to an independent lab that does expedited testing or an urgent care or their doctor (which is generally slower but more cost effective). Employees whose job functions requires them to be in close contact with customers or other employees can be periodically tested.

Have one designated employee, preferably someone with a medical background, record COVID-19 illnesses in a log. The log must be kept confidential and separate from the employee’s personnel file. Keep track of employees that have been in contact with COVID-19 infected persons and require that those employees take viral tests. Sanitize the work areas of any employees who test positive for COVID-19.

If you need any assistance or guidance on any of these matters, we are here to help.

Bruce E. Loren, Michael I. Kean, and Brandon J. Camilleri of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, complex commercial litigation, and employment law. Mr. Loren has been certified in construction law by the Florida Bar since 2004, exemplifying the Bar’s recognition of his expertise. Mr. Loren, Mr. Kean, and Mr. Camilleri can be reached at: bloren@lorenkeanlaw.com , mkean@lorenkeanlaw.com , and bcamilleri@lorenkeanlaw.com or 561-615-5701.