Here are two employment law developments that don’t merit a full blog post but they are worthy of your attention. Read on to learn about changes in the Centers for Disease Control’s list of symptoms of COVID-19 (important if you are monitoring your employees’ health) and the Equal Employment Opportunity Commission’s position on the use of COVID-19 tests by employers.
The CDC’s Official List of COVID-19 Symptoms
Some employers are monitoring employees’ health when they report to work and during the course of the workday. If you are among them, take note that the Centers for Disease Control (“CDC”) has expanded its list of symptoms that may indicate COVID-19 disease (on monitoring employee health, see my blog posts here and here). The original symptoms identified by the CDC were just fever, dry cough, chills and sore throat. The CDC now lists cough and shortness of breath or difficulty breathing as symptoms of COVID-19 by themselves. It also says that people experiencing any two or more of the following symptoms are potentially sick with COVID-19:
• Fever • Sore throat
• Chills • Headache
• Repeated shaking with chills • Muscle pain
• Newly developed loss of taste or smell
Consistent with its previous guidance, the CDC notes that symptoms may appear anywhere from two to fourteen days after a person has been exposed to the virus. Infected persons have shown a wide range of symptoms, from no symptoms at all to mild symptoms to severe illness.
Employers who are asking their employees whether they are experiencing symptoms of COVID-19 should now add these conditions to their list of questions.
The EEOC Confirms That Employers Should Follow CDC Guidance and That COVID-19 Testing Does Not Violate the Americans with Disabilities Act
The EEOC issued pandemic flu guidance back in 2009, and employers have looked to that guidance in dealing with the COVID-19 pandemic. The EEOC has now updated that 2009 flu guidance to address the COVID-19 pandemic. New material appears in bold. More information may be found on its Technical Assistance Questions and Answers page, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Here it provides what is perhaps the most important point for employers to remember:
The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. (emphasis added).
Employers should always follow recommendations and directives from federal, state and local public health authorities, and the new guidance makes clear that the law allows that. Where a public health recommendation appears to conflict with the requirements of the Americans with Disabilities Act (ADA), employers should look to the EEOC’s new pandemic guidance and its coronavirus Technical Assistance Questions and Answers page. The EEOC has done a good job anticipating likely questions and explaining how employers can comply with both public health and ADA requirements.
Within the last few days, the EEOC has addressed a new question that is not yet common in North Carolina, namely, whether an employer may itself administer a COVID-19 test before allowing an employee to enter the workplace. Tests to detect COVID-19 infection are still not widely available in North Carolina and are being prioritized for use by health care professionals and first responders, and in nursing homes. As of the date of publication, few, if any, North Carolina public employers have COVID-19 tests available to test employees.
That may change in time and the EEOC has now said that employers may test their employees for COVID-19 infection before allowing them to enter the workplace. A COVID-19 test is a medical test of the kind generally prohibited by the ADA. But the ADA provides an exception when the test is “job related and consistent with business necessity.” Under the current circumstances of the COVID-19 pandemic, an employee infected with the virus poses a direct threat to the health of other employees and citizens. Requiring a COVID-19 test before allowing an employee to enter the workplace is, therefore, job related and consistent with business necessity.
News reports are rife with stories about COVID-19 tests that do not always produced reliable results. The EEOC warns employers to use only tests that are accurate and reliable. To that end, it recommends that employers review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. And as the EEOC reminds us, accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws at Question #6.