In late-March and April 2020, the Equal Employment Alternative Fee (EEOC) launched steering addressing varied questions with solutions regarding COVID-19 and associated office disability-related points below the Individuals with Disabilities Act (ADA). Just lately, on June 17th, EEOC up to date its steering to incorporate a brand new query relating to antibody testing.
Many of the questions concern basic worker rights and privateness and employer obligations in the course of the present state of the COVID-19 pandemic. A couple of of the questions relate to the anticipated gradual return to the workplace of staff quickly working remotely because of the pandemic because the disaster subsides.
The EEOC’s April replace, inter alia, included a dedication that employers can administer COVID-19 testing (i.e. testing for energetic virus), and advisable that employers do the next:
Decide that assessments are correct and dependable.
Evaluate steering from the Meals and Drug Administration (FDA), U.S. Facilities for Illness Management and Prevention (CDC), and different public well being authorities and repeatedly test these authorities for updates.
Think about incidences of false positives and false negatives related to specific assessments.
Needless to say a adverse take a look at doesn’t imply an worker won’t contract the virus sooner or later.
Require that staff proceed an infection management practices, together with social distancing, handwashing, and different cleanliness and disinfecting measures.
The April replace was silent on whether or not its dedication relating to COVID-19 testing additionally included antibody testing. Antibody testing (i.e. serological testing), is ready to detect antibodies from a earlier an infection. Nonetheless, the take a look at can take one to 3 weeks for antibodies to develop following onset of signs, and it isn’t sure that antibodies present immunity or, in that case, how lengthy immunity would final – the present reliability and utility of those assessments is in query.
The June 17th replace to the EEOC steering weighs in on antibody testing within the office. Particularly, the EEOC supplies a solution to the next query:
CDC mentioned in its Interim Pointers that antibody take a look at outcomes “shouldn’t be used to make choices about returning individuals to the office.” In mild of this CDC steering, below the American with Disabilities Act (ADA) could an employer require antibody testing earlier than allowing staff to re-enter the office?
The EEOC concludes that antibody testing constitutes a medical examination below the ADA, and employers can’t require antibody testing earlier than allowing staff to re-enter the office.
“In mild of CDC’s Interim Pointers that antibody take a look at outcomes “shouldn’t be used to make choices about returning individuals to the office,” an antibody take a look at right now doesn’t meet the ADA’s “job associated and in keeping with enterprise necessity” customary for medical examinations or inquiries for present staff. Due to this fact, requiring antibody testing earlier than permitting staff to re-enter the office will not be allowed below the ADA. “
You will need to notice that as with different forms of COVID-19-related steering, the EEOC will proceed to watch the CDC’s suggestions, and replace its dialogue on this matter in response to modifications within the CDC’s suggestions.
Takeaway
On the whole COVID-19 testing strategies include administrative burdens to implement and guarantee compliance. Such testing presents privateness implications, significantly with respect to testing that requires a blood pattern or swab. Furthermore, any data collected ought to be protected with entry appropriately restricted, significantly if the group is utilizing a third celebration. As points and issues round COVID-19 unfold day by day, employers should put together to handle the menace because it pertains to the well being and security of their workforce.
Jackson Lewis P.C. © 2020Nationwide Legislation Evaluate, Quantity X, Quantity 177
