Law360 (May 22, 2020, 2:23 PM EDT) --
While testing could potentially be a tool for enhancing workplace safety and reassuring a nervous workforce, its potential to generate class and representative litigation should not be ignored. Accordingly, employers and their counsel should take care to understand the fast-changing landscape of legal authority for pandemic-related testing, and to be thoughtful in implementing such protocols for their employees.
Permissibility of Testing
Prior to the COVID-19 pandemic, requiring employees to submit to medical testing to enter the workplace was generally impermissible. The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.
A "direct threat" is defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." Civil rights laws in many states are similar.
Since the pandemic, the U.S. Equal Employment Opportunity Commission has updated its guidance, initially advising that employers may take employees' temperature as a tool to screen for COVID-19 symptoms, and more recently on April 23, providing that employers may "administer a COVID-19 test (a test to detect the presence of the SARS-CoV-2 virus) before permitting employees to enter the workplace."
In doing so, it reasoned that an individual with the virus would pose a direct threat to the health of others. The EEOC, however, cautioned that the tests must be accurate and reliable and advised employers to review guidance from the U.S. Food and Drug Administration and Centers for Disease Control and Prevention as to the accuracy and safety of such tests. The burden is on the employer to demonstrate that the tests it administers are accurate and reliable.
A number of states have followed the EEOC's lead. For example, on March 20, within days of the EEOC's initial guidance update, the California Department of Fair Employment and Housing published guidance stating that, while employee body temperature testing normally would be considered a medical examination permissible under state civil rights law in very limited circumstances, "based on current CDC and local public health information and guidance, employers may measure employees' body temperature for the limited purpose of evaluating the risk the employee's presence poses to others in the workplace as a result of the COVID-19 pandemic."
In light of the EEOC's updated guidance, and provided that any applicable state and local law is in accord, employers may proceed with administering molecular tests, those that detect the presence of an active virus. It is unclear, however, whether employers may administer serological tests, which detect the presence of antibodies that result from the SARS-CoV-2 infection.
The EEOC's current guidance refers to tests that detect the presence of the virus as opposed to the presence of antibodies, as such tests reveal whether an employee is a threat to the workplace due to an active infection. Even assuming serological tests are deemed permissible under the ADA's direct threat standard, such tests must be accurate and reliable.
Currently, the CDC reports that it does not know to what extent antibodies will provide immunity, and duration of any such protection. Likewise, the FDA has reported it is not clear whether someone who has developed antibodies is "fully protected from reinfection, or how long any immunity lasts."
Potential Litigation Risks With Testing
While the testing of employees may help employers strike a balance between the need to reopen for business, workplace safety and social responsibility in managing the pandemic, it carries a risk of potential class and other litigation that employers should be mindful of when considering the types of testing to deploy and how and whether to implement them. Failure to use an accurate, reliable and safe test within the guidance of the FDA and CDC could take an employer outside of the EEOC-recognized direct-threat exception under the ADA for COVID-19 testing of employees.
Mandatory temperature testing as a condition of entering the work premises could lead to wage and hour claims for uncompensated working time if the waiting and taking of such a test is more than de minimis, or trivial, and employees are made to take such tests before clocking in for work. Potential claims for reporting time or show-up pay may arise if questions exist regarding temperature testing accuracy or a protocol that does not involve a second temperature test when a positive result is obtained.
Because of the guidance that any testing must be accurate and reliable, employers should consider whether even just a body temperature reading should be conducted by individuals with medical training and/or licensing, such as a nurse or physician assistant. Hours worked claims and, in certain states, actions for expense reimbursement are also risks for employers that require employees to submit to live infection testing, especially where employees are required to the leave the work site during a shift and travel to an external medical facility to be tested.
Employers that develop practices or policies which require a positive antibody test before allowing an employee to return to work, should also proceed with caution. While the policy may be neutral on its face, employers might be confronted with arguments that it could have a disparate impact against certain protected groups.
For example, given the present suggestion that more men than women have contracted COVID-19, such a policy theoretically could result in more men being permitted to return to work. Similarly, current data suggests that certain racial and ethnic groups, specifically black and Hispanic, have been disproportionately impacted by COVID-19.
In addition, such a policy arguably could result in a disparate impact against older individuals or those with preexisting disabilities who have been following strict self-isolation guidelines due to their high risk, and as a result may be less likely to have contracted the virus at the same rate of younger or nondisabled individuals in the community and thus less likely to test positive for antibodies.
As with any kind of permissible medical testing relating to employment or the workplace, employers will need to be vigilant to protect employee privacy and rights to confidentiality of medical information in connection with pandemic-related testing of any kind. The risk of claims from improper handling, disclosure or use of such information, including class or collective claims, grows in proportion to the percentage of its workforce that an employer subjects to such testing. Employers must be sure to follow applicable privacy and confidentiality rules under the ADA, Health Insurance Portability and Accountability Act, and state and local laws and regulations.
In the unique circumstances of this public health crisis, the frequency and volume of medical testing of employees is likely to reach levels never before seen as the country returns to work. Perhaps not surprisingly, the potential for class action and other litigation filings will also rise as a result.
In the wake of strong pressures to consider employee testing as part of reopening for business, employers can manage this risk by staying closely attuned to federal and state regulatory developments on testing and the reliability of certain types of tests, and being careful and thoughtful in developing and implementing testing policies and programs.
Jonathan Brenner is a member at Epstein Becker Green.
Denise Merna Dadika is a member and co-chair of the health employment and labor strategic industry group at the firm.
Michael McGahan is a member at the firm.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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