Throughout the COVID-19 pandemic, long-term care employers may seek to test employees for COVID-19 prior to employment, at regular intervals during employment, and/or at the onset of any illness. The federal Equal Employment Opportunity Commission’s (EEOC) “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” guidance is a helpful resource and was recently updated in light of the current public health emergency. The entirety of the EEOC’s guidance can be found here and sets forth three different employment scenarios before a medical examination, including a test, may be conducted.
- Before a conditional offer of employment: The ADA prohibits employers from conducting medical examinations of applicants before a conditional offer of employment is made.
- After a conditional offer of employment, but before an individual begins working: The ADA permits employers to conduct medical examinations if all entering employees in the same job category are subject to the same inquiries and examinations.
- During employment: The ADA prohibits employee medical examinations unless they are job-related and consistent with business necessity. Generally, a medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that:n employee’s ability to perform essential job functions will be impaired by a medical condition;
- An employee’s ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a direct threat due to a medical condition, which includes COVID-19.
The EEOC also states that its guidance should not interfere with employers following guidelines and suggestions from the federal Centers for Disease Control and Prevention (CDC) about steps employers should take regarding COVID-19. Under CDC guidance for COVID-19 testing in nursing homes, testing all health care personnel to identify COVID-19 regardless of symptoms or exposure is an accepted CDC infection prevention and control practice in light of the evidence that many individuals are asymptomatic.
If you have questions regarding COVID-19 testing for employees and best practices, please contact Laura Brown at lbrown@ihca.org.