Board Converting News, May 4, 2020

EEOC Gives Employers (CONT’D FROM PAGE 14)

have COVID-19 symptoms, but said that is the sort of med- ical data that must be kept confidential under the ADA. Michael Oliver Eckard, Managing Shareholder of Ogle- tree Deakins Nash Smoak & Stewart PC, noted that one of the elements in the White House’s recently released three-phase plan for reopening America’s economy called for employers to develop policies for conducting tempera- ture checks. The plan also put the onus on employers to monitor workers for COVID-19 symptoms. “So, I think the expectation is that more and more states and local jurisdictions will potentially be adding varying levels of employee screening recommendations or requirements in some cases that will include tempera- ture screening,” Eckard said. While the updated guidance by the EEOC “seems to focus on COVID-19 tests” aimed at finding out whether a person actively has the virus, Eckard pointed out that it “doesn’t appear to address one way or the other” the use of so-called antibody tests that can detect whether a per- son has had the virus and built up antibodies to it. “I think that’s still an open issue — the utility and per- missibility of employers using antibody tests,” he said. Feldblum and Masling echoed that sentiment, saying the issue may be one of the next topics the EEOC tackles. “The EEOC does still need to address the legality of us- ing serology (antibody) tests,” they told Law360. “That will be very helpful to employers as they [are] thinking about reopening the workplace.”

helpful” for businesses as they try to navigate workplace safety issues tied to the virus alongside their obligations under the ADA. “It is very helpful that the EEOC has now issued clear guidance that employers may require COVID-19 tests be- fore allowing employees back into the workplace,” Feld- blum and Masling said. “This is consistent with the advice we have been giving, since such tests can indicate wheth- er an individual may pose a direct threat to others. The EEOC acknowledges that the test results are not perfect, as there may be some false negatives and false positives, but on balance, that does not negate the utility of the tests for purposes of the ADA.” In recent weeks, the EEOC has updated its Q&A guid- ance numerous times, including adding a “Return to Work” section that covers topics such as the way businesses should handle requests by workers for accommodations and how to prevent potential harassment and discrimina- tion when workplaces reopen. Meanwhile, the issue of how far employers can go in screening workers for health risks in order to meet busi- nesses’ legal responsibility of providing them with a safe workplace is one that has received a lot of attention as employers have tried to cope with the spreading virus. In earlier guidance, the EEOC noted that employers can take employees’ temperature to assess whether they


May 4, 2020

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