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Reopening amid the pandemic: Firms must weigh risk with privacy

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Following the release of updated Equal Employment Opportunity Commission guidelines, there are still some unanswered questions about how employees may address COVID-19 testing or related policies that allow an employer to inquire about their state of health.

The guidance from the EEOC on pandemic preparedness, which was updated in March 2020, referred to Americans with Disabilities Act standards for medical testing in the workplace. It noted that “as of March 2020, the COVID-19 pandemic meets the direct threat standard.” This aligns with the ADA threshold for medical inquiries or tests that are “job related and consistent with necessity,” and thus supports limited workplace coronavirus testing and temperature checks.

However, subsequent EEOC guidance states that employers must ensure that any such tests are “accurate and reliable,” and also that state laws may differ from EEOC guidance. It further clarified that before an employer can exclude someone from the workplace due to COVID-19 or other CDC-identified underlying medical condition, it must be able to demonstrate “a direct threat to self” that cannot be eliminated or reduced by reasonable accommodation. This uncertainty and high standard may leave CPA firms vulnerable to potential future claims, barring the existence of reliable and consistent testing as well as future employer protections from COVID-19-related liability claims.

As businesses seek to get employees back to the office and back to work, employers may well wonder how to address the health and safety of their workforce while also complying with applicable law and respecting the personal freedom and privacy of individuals.

For now, specific policies and procedures may be left up to each individual employer in alignment with general guidance provided by EEOC, OSHA and testing guidance from the Centers for Disease Control (CDC) and the FDA. Here are some of those guidelines that can help your firm develop an approach as these uncertainties — and better knowledge of COVID-19 — evolve.

  • EEOC guidance issued April 23, 2020, states that employers do have permission to administer a test to detect the presence of the COVID-19 virus before permitting employees to enter the workplace. Assurance of “accurate and reliable” testing is left up to each individual employer, which is advised to follow CDC and FDA testing guidelines. Employers must ensure appropriate infection controls relative to the testing, and should be wary that false-positives and false-negatives can occur. Even accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not later acquire the virus.
  • Further EEOC guidelines state that employers are allowed to take employee temperatures, but who should take the temperature and how temperatures are taken is less clear. Some employers may choose to have employees take their own temperatures before coming to work and certify their own state of health. Any temperature-taking policy should be uniformly and consistently applied, and take into consideration each employee’s right to privacy as well as the ADA’s confidentiality requirements relative to results.
  • Asking about coronavirus symptoms is allowable under the ADA to the extent such inquiries are made of all individuals, but other respiratory conditions may be protected so inquiries must be narrowly construed. Employers may ask employees who call in sick if they are experiencing COVID-19 symptoms, but this must be asked of all such employees. Note that some people infected with coronavirus are asymptomatic.
  • Conditional employees may be subject to temperature checks as part of an otherwise lawful post-offer, pre-employment medical examination imposed upon all such individuals. An employer may also be allowed to delay the start of employment or, in limited cases, rescind an offer of employment if a conditional employee has COVID-19 or related symptoms.
  • Employees who test positive for COVID-19 should be immediately isolated from other employees and from the worksite. Employers should follow CDC and OSHA instructions, which include closing off any areas used for prolonged periods of time by the sick person, conducting environmental cleaning, disinfection and decontamination of infected areas, and informing fellow employees of their possible exposure to COVID-19 in the workplace (while maintaining confidentiality as required by the ADA). Employers may also have a duty to report to local public health authorities.
  • Results from an employee’s COVID-19 test or temperature check fall under ADA confidentiality provisions with respect to medical documents and information that employers obtain on an individual’s state of health. Test results, temperature logs or statements by an employee regarding his or her medical condition are all considered confidential medical information that should be securely stored separate from the employee’s personnel file. Only those in the organization with a lawful and legitimate need to know such information should have access to it. Disclosures may be permitted (or required) to public health authorities in some cases.
  • Employees who request reasonable accommodation because their condition falls under a high-risk category for severe illness if they contract COVID-19 may need to be reasonably accommodated following an interactive process with the employer. This can and should include review of documentation or assurances from a third party such as a doctor. If an employee known to be at high risk for severe illness from COVID-19 does not request reasonable accommodation, the employer is not required to offer or provide it.

There is still much to understand about COVID-19 and how it spreads. The guidance offered here is not legal advice and is provided as a baseline to begin establishing policies for employees’ return to work. Federal agency guidance has been forthcoming and is frequently updated; it is likely that more information as well as reliable testing measures will evolve to support employers in their responsibilities to keep their workplaces safe while complying with the law and respecting the rights of individual employees.

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