Latest EEOC COVID-19 Guidance Addresses Two Key Employment Questions

• May employers administer a COVID-19 test — a test to detect the presence of the COVID-19 virus — before permitting employees to enter the workplace?
• And, do the ADA and the Rehabilitation Act apply to applicants and employees whom the CDC has designated “critical infrastructure workers” or “essential critical workers”?

Says the EEOC, the answer to both questions is “yes”.

Regarding COVID-19 testing, under the ADA, a mandatory employee medical test must be “job-related and consistent with business necessity.” Applying that standard to the COVID-19 pandemic, the EEOC said that employers may take steps, such as administering COVID-19 tests, to determine whether employees entering the workplace have the virus. That’s because infected individuals pose a direct threat to the health of others.

Employers should ensure, however, that the tests are accurate and reliable. For example, explained the EEOC, employers may consult FDA, CDC, or other public health authority testing guidance. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Also, employers should remember that a positive test result only reveals whether the virus is present. And, an employee who tests negative may later get infected.

Also, the EEOC encourages employers, “to the greatest extent possible”, to observe infection control practices in the workplace, such as social distancing and regular handwashing, to prevent coronavirus transmission.

Regarding “critical infrastructure workers” and “essential critical workers”, the EEOC explained that those, and like, designations don’t trump the employment discrimination law. Thus, if a “critical” or “essential” employee requests an accommodation, the employer must accept the request and engage in the interactive process as the employer would for any other employee. And, as always, the employer’s response to the request will turn on whether (1) the worker is an individual with a disability; and (2) there’s aneffective accommodation that the employer can provide without undue hardship.

The EEOC’s guidance on these issues provides much needed clarity to employers and employees alike, particularly as some states are experimenting with relaxing stay at home and closure orders.