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EEOC's COVID-19 testing guidance raises questions: Expert


The U.S. Equal Employment Opportunity Commission has officially sanctioned employer use of COVID-19 testing, but its updated guidance on the issue raises several unanswered questions, an expert says.

In its previous update on how employers should deal with COVID-19 without running afoul of antidiscrimination laws, the EEOC said it was OK for employers to keep a log of employees’ temperatures, although they must still maintain their confidentiality.

On Thursday, the EEOC cited the Americans with Disabilities Act as requiring that any mandatory medical test of employees be “job related and consistent with business necessity.”

“Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.

“Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

The guidance goes on to state that employers should ensure the tests are “accurate and reliable,” and refers them to the guidance issued by the U.S. Food and Drug Administration, the Centers for Disease Control or other public health authorities.

“An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus,” it states.

J. Hagood Tighe, a  partner and co-chair of the wage and hour practice group for Fisher & Philips LLP in Columbia, South Carolina, said the guidance leaves “many, many unanswered questions,” including “how are we going to conduct the tests?”

“Because they are medical exams and we’re talking about medical information, any sort of testing needs to be done in a private way to protect the employee’s privacy and  confidentiality, and any testing information gathered needs to be maintained” in separate medical files rather than in  personnel files, Mr. Tighe said.

He said that, practically speaking, “the easiest way, I think, for employers to comply is to contract with vendors that can provide nurses and other medically trained people to conduct testing,” he said.

“Unfortunately, there are not going to be enough vendors to go around for everybody, so the next question is going to be whether employers want to conduct testing on their own,” which raises its own issues, he said.

Some employers, he said, have nurses or personnel with medical training, but companies must make sure they have the proper protective equipment, and they need to be trained on conducting COVID-19 tests, he said.

Mr. Tighe said that from a “purely practical standpoint” he questions whether the average employer has the staff capable of performing these tests.

Furthermore, at this point accurate and reliable tests are unavailable, he said.

The EEOC guidance states also, “Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.

“Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.”

More insurance and risk management news on the coronavirus crisis here.