Contributors

Jennifer Woo Burns

Of Counsel

As employers settle into their protocols for employee health screenings and other preventative measures to lower the risk of Coronavirus spread in the workplace, questions still remain as to what they can ask employees about their health. Government agencies continue to provide further clarification and guidance. Two agencies recently provided updates as follows:

• EEOC prohibits employers from requiring Coronavirus antibody tests of employees as a condition to returning to work: In its updated Technical Assistance Questions and Answers about COVID-19 compliance, the EEOC stated that in light of the CDC’s guidance that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. However, the EEOC noted that this determination only applies to antibody testing--as distinguished from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC affirmed its previous guidance that is it permissible under the ADA for employers to require employees to take a COVID-19 viral test.
• The list of COVID-19 symptoms has been expanded by the CDC: As COVID-19 cases proliferate and more is learned about the virus’ effect on patients, the CDC has updated its list of COVID-19 list of symptoms from time to time. Just recently, the CDC added a few more symptoms, specifically: congestion or runny nose, nausea or vomiting and diarrhea. These supplement the previous list of symptoms: fever or chills; cough; shortness of breath or difficulty breathing; fatigue; muscle or body aches; headache; new loss of taste or smell; and sore throat. The EEOC has instructed employers to rely on guidance on emerging COVID-19 symptoms issued by the CDC, other public health authorities and reputable medical sources. Employers should ensure that they have a complete list of symptoms to use in their screening process.

Directives from government agencies and public health officials continue to develop. Employers should continue to watch for updates and keep apprised of their obligations to maintain safe workplaces. Scali Rasmussen’s COVID-19 Task Force also continues to provide up-to-date compliance solutions for businesses and ongoing Alerts regarding critical developments.