On May 5, 2020, Nick Reiter and Thora Johnson were quoted in Business Insurance regarding employer use of COVID-19 tests. U.S. Equal Employment Opportunity Commission guidance that sanctions employer use of COVID-19 testing raises more questions than it answers, and increased employment practices liability claims may be inevitable.
According to the article, while the guidance provides some parameters that employers can follow as they restart operations, it carries limited legal authority and leaves numerous details unaddressed, such as which tests are appropriate, who should conduct the tests, how tests should be administered, what should be done to protect workers’ privacy, how reliable the tests are, the timing of results, frequency of retesting, how the tests will be paid for, and whether employees should be paid for the time they wait in line to have their temperatures taken.
An employer’s medical inquiry policy should be applied consistently, said Reiter. The more exceptions to a policy there are, the more likely it is that an employer will face a disability claim under the ADA or a related state or local law, he said.
If the medical test is conducted by a healthcare professional who is subject to HIPAA (the Health Insurance Portability and Accountability Act of 1996), there likely should be a written authorization to release information to the employer, said Johnson.
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