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U.S. Equal Employment Opportunity Commission guidance that sanctions employer use of COVD-19 testing raises more questions than it answers, and increased employment practices liability claims may be inevitable, say many observers.
While the guidance provides some parameters that employers can follow as they restart operations, it carries limited legal authority and leaves numerous details unaddressed, which could lead to a variety of discrimination lawsuits, they say.
In guidance issued late last month, the EEOC said that to comply with the Americans With Disabilities Act, mandatory medical tests of employees must be “job-related and consistent with business necessity.”
If employers apply the standard, they can take steps to determine if workers entering the workplace have COVID-19.
But, experts say, the guidance does not address such details 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 (including the issue of false positives and false negatives), 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.
“I think we all, in the employment practices world, are bracing for a deluge of claims,” which will take a few months to materialize, said Kelly Thoerig, Richmond, Virginia-based U.S. employment practices liability product leader for Marsh LLC.
“There’s always going to be lawsuits. We’re in uncharted territory,” said Myrna L. Maysonet, a partner with the labor and employment and class action defense practices groups at Greenspoon Marder LLP in Orlando, Florida.
Experts say employers’ employment practices liability policies may respond to claims, depending on their policies’ coverage.
“It’s pretty hard to write a document that answers all the possible things that can happen in a workplace when it comes to COVID-19 questions,” Gerald L. Maatman Jr., a partner with the labor and employment practice of Seyfarth Shaw LLP in Chicago, who defends employers, said of the EEOC guidance document.
“It’s meant to be a start that provides some parameters for employers to understand the issues, but it’s not a substitute for an individualized assessment of the particular issues that are presented by a worker,” Mr. Maatman said.
Still, the guidance issued by the EEOC will be useful, said Tom Hams, Chicago-based managing director and national employment practices liability insurance practice leader at Aon PLC.
“The EEOC’s done a good job, I think, of putting out the guidance, particularly the concerns around the ADA and how that impacts employers’ ability to stay open for business while they also protect their workforce,” he said.
The agency has essentially indicated that it will permit certain exceptions to the traditional rules under the ADA, said Barry Hartstein, a shareholder with Littler Mendelson P.C. in Chicago, who is co-chair of its equal employment opportunity and diversity practice group.
“This is a unique ‘get out of jail’ sort of card for the employer, who typically needs to be careful about the types of inquiries that it makes,” he said.
Generally, taking a temperature or administering a COVID-19 test constitutes a medical exam, which “must be job-related and consistent with business necessity,” Mr. Hartstein said.
The EEOC guidance, however, will be interpreted by courts, and state laws, such as those concerning confidentiality or wage and hour issues, may conflict with the guidance, Ms. Thoerig said.
Employers should be careful how they implement their testing policies, said Gus Sandstrom, a partner with Blank Rome LLP in Philadelphia, who defends and advises employers.
“It sounds very good to say, ‘We’re going to test, we want to test,’ but the real question is how do you test right,” he said.
Employers should make clear how tests will be conducted, what protocols will be followed if someone tests positive and how they will ensure results remain confidential, said Talene Carter, New York-based national employment practices liability product leader for FINEX North America at Willis Towers Watson PLC.
An employer’s medical inquiry policy should be applied consistently, said Nicholas M. Reiter, co-chair of Venable LLP’s law and employment group in New York, who represents employers. The more exceptions to a policy, the more likely an employer is to face a disability claim under the ADA or a related state or local law, he said.
If the medical test is conducted by a health care professional who is subject to HIPPA, or the Health Insurance Portability and Accountability Act of 1996, there likely should be a written authorization to release information to the employer, said Thora A. Johnson, a partner with Venable in Baltimore, who chairs the firm’s healthcare practice.
Employers must comply with guidance from the Centers for Disease Control and Prevention, such as its advice to use noncontact thermometers and take steps to ensure social distancing, said Paul E. Starkman, a member of law firm Clark Hill PLC in Chicago, who represents employers in the firm’s labor and employment practice group.
“What I’ve been discussing with clients is having employees take the temperatures at home,” and otherwise self-certify they do not have COVID-19 symptoms, and do that on a daily basis, said Eric B. Meyer, a partner with FisherBroyles LLP in Philadelphia, who represents employers.
Employers may have to brace themselves for some increase in claims, whatever measures they take, experts say.
“We’re living in a time when we now have the highest rate of unemployment since the Great Depression,” said Mr. Hartstein, who noted the increase in charges filed with the EEOC after the financial crisis.
Experts say any claims arising from tests are likely to be covered by employment practices liability insurance, but there is no guarantee. “It will depend on the circumstances of each policy,” Mr. Sandstrom said.
“I think the employer has a good argument it is covered by EPLI, but we haven’t seen yet how insurance companies are going to respond, and what position they’re going to take with respect to coverage,” he said.