Board Converting News, June 15, 2020

To Test Or Not To Test (CONT’D FROM PAGE 32)


agency that enforces federal workplace discrimination laws – issued special guidance expressly permitting em- ployers to take employee temperatures and conduct viral COVID-19 tests. This guidance is based on the reasoning that an employee with COVID-19 poses a “direct threat” to the health of others, defined as a significant risk of sub- stantial harm to the health or safety of the individual or oth- ers that cannot be eliminated or reduced by reasonable accommodation. The EEOC guidance advised that the tests must be both “accurate” and “reliable” based on information avail- able from the Food and Drug Administration (FDA) and the CDC. Employers also are encouraged to consider the inci- dence of false-positives or false-negatives associated with a particular test. Several local governments have seem- ingly adopted the EEOC’s policy stance, permitting – or even requiring in certain instances – that employers con- duct temperature screening on employees to identify and eliminate from the workplace those with fevers or other symptoms of COVID-19. The EEOC has not explicitly approved the use of anti- body tests, however. This may be because antibody tests do not test for a current infection of the virus that caus- es COVID-19. Thus, a positive antibody test result cannot identify whether an employee poses a “direct threat” to others, and a negative result cannot identify whether that employee is “directly threatened” by anyone else. Employ- ers who rely solely on antibody tests may end up exclud- ing safe, eligible employees from the workforce, and may return to work employees who may pose no lesser threat than any other untested employee (and those employers could find themselves defending a disability discrimination lawsuit). There are other limitations on the use of these tests that employers should consider: • Though temperature checks are quick and can be less invasive than other tests, temperature screens may not identify all COVID-19-positive employees, as employ- ees may not be symptomatic. It may also be difficult to administer temperature taking in a lawful way, includ- ing keeping employees’ medical information private, paying employees for waiting time, and properly train- ing those who are involved in the temperature-taking process. • A negative viral test – meaning the employee does not have a current infection – does not mean that the em- ployee will not get exposed and get sick, even possibly a short time later. • Antibody tests should be approached most cautious- ly of all, since antibody testing does not identify em- ployees with a current COVID-19 infection. In fact, the CDC states that a positive antibody test means the individual may have antibodies from an infection with the virus that causes COVID-19, or possibly from

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June 15, 2020

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