Ordinarily, the Americans with Disability Act (ADA) prohibits an employer from performing medical tests on all of its employees – but these are not ordinary times. On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) stated that "an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus."
This is the latest trimming of the ADA's rules on employee medical exams. Over the last few weeks, the EEOC has given the thumbs-up for various medical inquiries of employees, such as mandatory temperature checks and questionnaires regarding COVID-19 symptoms. Businesses that re-open their doors may want to consider employee medical exams as a safety precaution for protecting their employees, customers, and other individuals who enter the workplace.
It is not, however, as easy as merely buying a thermometer. There are still many laws and regulations that could lead to employer trouble for COVID-19 testing in the workplace. The following is a list of relevant considerations for employers:
- Discrimination: Are all employees subject to mandatory COVID-19 testing? And if not, what is the employer's legitimate basis for testing some employees but not others? Employers must ensure that their COVID-19 testing policy is applied in a consistent, non-discriminatory manner. If some employees are treated differently than others, an employer may face discrimination claims under the ADA or related state and local laws.
- Confidentiality: May an employer disclose an employee's COVID-19 test results? Employers must maintain confidentiality of employees' medical information, including COVID-19 test results. After test results are received, the tester should share the results with a designated individual at the employer, who can then communicate the information to managers on a need-to-know basis only. The name of the individual tested should not be communicated unless necessary to prevent a direct threat to safety. There are also requirements for an employer's storage of medical information. Under the ADA, medical information concerning an employee must be maintained separately from the employee's personnel file in a confidential and secure medical file. Any COVID-19 documentation should be included in the employee's medical file as opposed to a personnel file.
- Wage and Hour Issues: Are staff spending significant amounts of time in the workplace waiting in line to be tested for COVID-19? If so, hourly employees and other staff eligible for overtime wages may be due wages for their waiting time. Employers should establish testing policies that minimize employee waiting time and consult with counsel about the wage-and-hour laws applicable within the state(s) in which they operate.
- Telecommuting: In the event of a positive COVID-19 test result, telecommuting may provide a temporary solution for maintaining employee productivity. Whether telecommuting is appropriate will depend primarily upon the employee's job duties. A remote work arrangement raises its own set of unique employment issues. As we previously wrote here, employers with telecommuting employees should consider drafting a telecommuting policy that establishes clear ground rules for working from home.
Employers with questions about how to administer a mandatory COVID-19 testing policy may contact Nicholas M. Reiter at nmreiter@venable.com, Juliana Reno at jreno@venable.com.