The United States Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws. That includes the Americans with Disabilities Act (ADA), which applies to private employers with 15 or more employees. Many states have a comparable law that applies to private employers with even fewer employees. The ADA prohibits employers from making disability-related inquiries to, or requiring medical exams of, existing workers unless the inquiry or exam is “job related and consistent with business necessity.”
As lawyers, we routinely caution employers against seeking (or even inadvertently obtaining) employee medical information. But, as we previously mentioned, given the coronavirus’ potential to create havoc in the workplace, employers now find themselves permitted (and in many instances required under executive orders or public health orders) to subject their employees to rigorous screening as a matter of “business necessity.”
For starters, the EEOC has made clear that employers may screen employees for COVID-19 symptoms. Moreover, while taking an employee’s body temperature would normally be considered an impermissible medical exam, the EEOC permits mandatory body temperature checks during the pandemic.
Further, COVID-19 testing (that is, testing for the presence of the virus itself) is now a permissible screening tool for allowing employees to return to, and to continue in, the workplace. In contrast, because the Centers for Disease Control (CDC) does not find antibody testing to be a reliable tool for detecting and preventing the spread of the coronavirus, the EEOC finds antibody testing to be an impermissible medical examination under the ADA.
When administering health screenings or medical exams, employers need to keep in mind the cardinal rule that these practices be administered in a routine, non-discriminatory fashion. An otherwise permissible test will become unlawful if it is used to single out or harass a particular employee. Additionally, as everyone well knows by now, our collective understanding of the coronavirus continues to unfold and to morph. We can assume the CDC’s guidance and the EEOC’s rules will do the same. As the pandemic drags on, employers need to remain vigilant and current on their understanding of the applicable workplace rules under state and federal law. If you have questions about this, contact us at firstname.lastname@example.org or (248) 477-6300.