COVID-19 and the Americans with Disabilities Act- The EEOC Issues Guidance on COVID-19 Testing

Since the coronavirus was declared a pandemic, the EEOC has been regularly issuing guidance concerning issues related to the global health crisis and the workplace. Some of this guidance relates to the Americans with Disabilities Act (“ADA”). The last time guidance such as this was issued was in 2009 during the spread of the H1N1 virus.

By way of background, the world has seen four influenza pandemics in the last century: The deadly “Spanish Flu” of 1918 was followed by the milder “Asian” and “Hong Kong” flus of the 1950s and 1960s. While the SARS outbreak in 2003 was considered a “pandemic scare,” the H1N1 outbreak in 2009 rose to the level of a “pandemic.” On March 11, 2020, the coronavirus disease (COVID-19) was declared a pandemic.

The ADA prohibits discrimination against job applicants and employees on the basis of disability. In New York, the New York State Executive Law and New York City Human Rights Law contain the same prohibitions. The ADA, however, permits employers to exclude individuals from the workplace if they pose a “direct threat” to the health or safety of that workplace. The EEOC has affirmatively declared that COVID-19 meets the definition of a “direct threat.”

On April 23, the EEOC updated its ongoing COVID-19 guidance to expressly allow employers to require COVID-19 tests to returning employees finding that such tests are permissible under the “direct threat” exception to the ADA.

The EEOC’s guidance came with these three caveats:

1. Employers should ensure the tests are accurate and reliable.
2. Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
3. Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.

At this point, very few employers can obtain COVID-19 tests for their workforce so currently this guidance seems more aspirational than anything else. However, when tests become more available, employers may use them in planning on how to re-open their businesses and determining what steps they will take to ensure the health and safety of their workplace.

Some questions that still exist:

• Can employers require employees to obtain a test on their own prior to returning to work? The question addressed by the EEOC was phrased in the context of whether an employer can administer a COVID-19 test to employees.
• If an employer can require employees to obtain a test on their own, who is responsible for paying for the tests?

Stay tuned as there will surely be more to come from the EEOC.