To test or not to test: Employers’ rights and duties in a coronavirus world

Amid the general panic and confusion caused by the coronavirus pandemic, employers are faced with the question of testing their employees for COVID-19. After all, an infected employee may present a hazard not only to himself or herself, but also to co-workers and even customers. So, what is an employer to do?

The first thing to keep in mind is that all existing laws continue to apply. These include Title VII, the Americans with Disabilities Act, the Fair Labor Standards Act, the Family and Medical Leave Act (now amended), the Health Insurance Portability and Accountability Act, the Genetic Information Nondiscrimination Act, and other federal, state, and local workplace laws. The general duty clause in the Occupational Safety and Health Act provides that “an employer shall furnish to his employees employment and place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .” This alone might allow an employer to question, and possibly test in some manner, an employee for a contagious virus based on a reasonable suspicion.

The ADA issue

The ADA generally considers the taking of an employee’s temperature to be a “medical examination,” which it defines as any “procedure or test that seeks information about an individual’s physical or mental impairments or health.” With current employees, medical examinations are prohibited by the ADA unless the examinations are “job-related and consistent with business necessity,” or if other very narrow exceptions apply. Generally, medical examinations of current employees are allowed if 1) the employee’s actual or suspected medical condition may be impairing the employee’s ability to perform his or her “essential job functions,” or 2) the employer has a reasonable belief that the employee poses a “direct threat” to his or her own health or safety, or that of others, that cannot be eliminated or reduced by reasonable accommodation. The second factor “must be based on objective evidence obtained, or reasonably available to the employer.” The Centers for Disease Control and Prevention, or other governmental health agencies, can provide the objective basis needed.

In 2009, the Equal Employment Opportunity Commission issued guidance in connection with the H1N1 influenza that it reaffirmed last week. In its “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” the EEOC took the position that, during a pandemic, employers could rely on the latest CDC and state or local public health assessments to objectively determine whether the pandemic rises to the level of a “direct threat” to the safety of the individual or others. Although assessments might vary depending on geography or other factors, generally if an employer relies on an official assessment to make the determination that a direct threat exists, it may go ahead and test its employees.

COVID-19 is now officially a “direct threat”

Late afternoon on March 19, the EEOC went further than merely reaffirming what it said in 2009. The agency now specifically states as follows:

In light of this finding, the EEOC confirms that “employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19” and “may measure employees’ body temperature.”

Of course, the “direct threat” finding applies only to COVID-19 and is temporary.

Practical considerations

Employers choosing to take their employees’ temperatures should make clear that the temperature test is being used solely to determine whether the employee may have a symptom of COVID-19, as opposed to determining whether the employee has some other medical impairment or disability. In addition, employers opting to temperature test should use infrared digital thermometers rather than oral thermometers, which are more invasive. Employers should exercise caution because an employee can have a fever for many reasons other than COVID-19. Conversely, an infected employee may be asymptomatic and not exhibit a fever at all but still be contagious. Thus, temperature testing should be followed up by relevant medical questioning. Although the EEOC’s current guidance allows employers to do this, the better practice would be to refer the employee to a health care provider for follow-up.

Employers should avoid taking actions that could make them liable for disability discrimination. This would include terminating or taking other adverse action against employees who have or have been exposed to coronavirus, or who simply have fevers. Instead, the employee should be sent home or to a health care provider for further evaluation, with paid leave if applicable, and allowed to return to work after recovery.

If the temperature test or other screening results in the disclosure of other personal medical information -- for example, immunodeficiency -- it would violate the ADA for the employer to take action against the employee based on that information. Under the ADA, employers are liable not only for discrimination against individuals who actually have disabilities, but also for discrimination against individuals who are “regarded as” having disabilities, even if they are not actually disabled. In addition, the employer must comply with applicable state or local laws prohibiting disability discrimination.

It also violates the ADA for an employer to disclose an employee’s personal medical information to anyone who does not have a legitimate, job-related reason to know.

If the employer’s coronavirus screening somehow results in disclosure that an employee is pregnant, discriminating against the employee would violate the Pregnancy Discrimination Act and possibly other state or local laws.

From a wage and hour standpoint, it is important to note that the waiting time for temperature testing may well be compensable.

Finally, under OSHA regulations as they currently stand, if an employer tests an employee and creates a medical record, the employer must retain the record for the duration of the employee's employment, plus 30 years.

The California Consumer Privacy Act

If you are subject to the CCPA and decide to undertake temperature testing, you’d also be wise to update your Notice at Collection to specifically reference the temperature testing and the reasons.

Conclusion

Employers may be acting lawfully if they decide to implement temperature testing of their employees as part of their coronavirus screening and prevention efforts. There are, however, many legal and practical issues to consider. Any employer considering a temperature-testing program should carefully read the EEOC bulletin and consult with employment counsel before taking action. Constangy stands ready to help.

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