As workplaces in North Carolina and South Carolina are opening back up, employers should make sure they are up to date on their rights and obligations to test or otherwise screen their employees for COVID-19 under the federal anti-discrimination laws governing the workplace.
The Equal Employment Opportunity Commission is the federal agency that enforces federal anti-discrimination laws, including the Americans with Disabilities Act, which applies to private workplaces with 15 or more employees, as well as to state and local governments. Coinciding with many workplaces reopening, the EEOC has updated its technical assistance on COVID-19. The Centers for Disease Control and Prevention also recently updated its guidance on COVID-19 testing, emphasizing among other things that the EEOC allows employers to implement policies for required testing of employees.
Under the ADA, any mandatory medical test of employees must be “job related and consistent with business necessity.” The EEOC has concluded, based on guidance from the CDC and public health authorities, that the COVID-19 pandemic meets the “direct threat” standard under the ADA. More specifically, the EEOC provides that individuals with a disability are not protected by the non-discrimination provisions of the ADA if they pose a “direct threat” despite reasonable accommodation. 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.” Also, testing administered by employers consistent with current CDC guidance will meet the ADA’s “business necessity” standard. FULL ARTICLE