Prompted by Jeff Bezos’s plans to test all Amazon employees for the virus that causes COVID-19, we wondered whether employers can mandate employee testing, regardless of symptoms. The issue pits public safety against personal privacy, but limited testing availability has rendered the question somewhat moot.
But as the World Health Organization and U.S. Centers for Disease Control and Prevention have noted, asymptomatic COVID-19 carriers can spread the virus without realizing they’re infected. To learn more about workers’ rights in this arena, we spoke to Tricia Bozyk Sherno, counsel at Debevoise & Plimpton, who focuses on employment and general commercial litigation.
The answer, for now, is not entirely straightforward, though updates from the U.S. Equal Employment Opportunity Commission could make the situation clearer going forward as more tests are made available and state governments begin pushing to reopen businesses.
Sherno offered a fair amount of insight into the EEOC’s updated guidance and made some predictions about how things may look for both employers and workers going forward.
TechCrunch: Prior to the COVID-19 pandemic, what sorts of laws governed an employer’s ability to test employees for infectious diseases?
Tricia Bozyk Sherno: Covered employers (employers with 15 or more employees) must comply with the requirements of the Americans with Disabilities Act (ADA), which limits an employer’s ability to make disability-related inquiries or require medical examinations. (Note that certain states may also have similar statutes in place.) Generally, disability-related inquiries and medical examinations are prohibited by the ADA except in limited circumstances. A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health — so infectious disease testing would fall into this category.A medical inquiry or exam is permitted for current employees only if the employer has a reasonable belief that a particular employee will provide a “direct threat” due to a medical condition. For new employees, the ADA permits employers to conduct medical examinations after a conditional offer of employment is made, but before an individual begins working, provided that all employees in the same job category must be subject to the same examination requirement.
The primary “medical examination” considered by the existing EEOC guidance is temperature measurements. Available guidance does not yet address COVID-19 testing. The EEOC’s guidance on the subject of testing will likely depend on CDC guidance and directives. The EEOC states on its web site: “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.”
How have these changed or been relaxed? Who has the authority to make these adjustments?
Existing law has not changed, but the guidance continues to evolve. The pre-pandemic standards regarding medical inquiries and medical examinations currently do not apply because the pandemic has created a clear “direct threat.”
To give a bit of history and context, in 2009, the Equal Employment Opportunity Commission (EEOC) released guidance for employers regarding compliance with the ADA during a pandemic. At the outset of the pandemic, the EEOC was using the 2009 guidance, but it subsequently issued additional guidance directly related to COVID-19. For instance, on March 17, 2020, the EEOC updated its guidance to allow employers to take employee temperatures, and doing so is treated as a medical examination. The EEOC changed the guidance once the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions. On Friday, April 17, the EEOC updated its guidance again to provide as follows:
The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. Inquiries and reliable medical exams meet this standard if it is necessary to exclude employees with a medical condition that would pose a direct threat to health or safety.
Direct threat is to be determined based on the best available objective medical evidence. The guidance from CDC or other public health authorities is such evidence. Therefore, employers will be acting consistent with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time.
For example, this may include continuing to take temperatures and asking questions about symptoms (or require self-reporting) of all those entering the workplace. Similarly, the CDC recently posted information on the return of certain types of critical workers.
If and when testing becomes more widely available, I would expect that we will see further guidance from the EEOC, the CDC and state authorities.
Note that the data that employers collect from these inquiries must be maintained by the employer as a confidential medical record in compliance with the ADA. This generally means that the records must be kept in separate and secure files. If a company does business in the State of California (e.g. it has one or more locations, employees, customers, suppliers, etc. in the state), and the business is subject to the California Consumer Privacy Act (CCPA), then the employer must provide employees a CCPA-compliant notice prior to or at the same time as collection of this information.
Does an employer’s ability to conduct mandatory tests change if an employee is asymptomatic?
See above answer regarding a “direct threat.” Again, we might see further guidance or even new laws if and when testing becomes more widely available.
Are employers allowed to send home employees who test positive? Are they legally required to do so?
An employee who tests positive for COVID-19 should be sent home immediately until he is permitted to return to work based on federal and state guidance. Employers should follow the CDC’s Public Health Recommendations for Community-Related Exposure. Employers are not permitted to share the identity of the infected employee for risk of violating the ADA or other applicable privacy laws. Employers who do not follow the guidance are at risk of liability, including the possibility that an employee can sue the employer based on a negligence theory.
Are employees who test positive protected from being fired for a positive test?
Yes, the ADA prohibits discrimination against individuals with a disability and requires employers to provide reasonable accommodations for such individuals. Local and state laws may also provide additional protections for impacted employees.
Are there any employment safeguards in place for employees who test positive? Or are these entirely at the discretion of the employer?
Certain states and the federal government have enacted sick leave for certain employees who test positive and who cannot work.
Do you anticipate that adjustments to the law will return to their pre-COVID state, or might we be seeing a precedent?
The EEOC updated guidance is designed to address standards during a pandemic when there is a direct threat on health and safety. Once the pandemic passes and there is no longer a direct threat, I would expect that the current pandemic guidance will no longer be applicable. However, I also expect that the pandemic will have a long-term impact on workplace policies and future government action at both state and federal levels.
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