Employers Can Test Workers for Virus before Joining For Work

The coronavirus pandemic has forced countries to declare lockouts and stay at home orders for the past one month or so. With fears of the economy collapsing, even with stimulus packages and bailouts, governments across the world are considering opening up non-essential services and businesses too in a phased manner.

Government agencies are busy coming up with regulations to restrict the spread of the virus and the protocols to observe on resumptions of business as usual. The Equal Employment Opportunity Commission (EEOC), the U.S. agency that oversees any disability discrimination at the workplace, announced Thursday that companies are allowed to test employees for COVID-19 before allowing them to rejoin the workplace as long as the testing kit and method is reliable.

An earlier announcement by EEOC had said that employers could take workers’ temperatures without violating the Americans with Disabilities Act (ADA). This recent promulgation has widened the scope of testing. The commission said mandatory medical testing, which is generally prohibited by the ADA, is allowed if it is “job related and consistent with business necessity.” The EEOC announcement comes as some states begin to lift shelter-in-place orders and allow businesses to reopen and their employees to return to work.

employers-testing-for-coronavirus

Worldwide the number of Covid-19 cases stands at 2,846,536 with 197,89 deaths. The United Staes is the worst-affected amongst all countries with 925,000 infected and 52,217 dead.

Americans with Disabilities Act, or ADA, which aims to safeguard individuals’ privacy, and Occupational Safety and Health Administration standards, is designed to protect workers’ safety. But one thing that should be kept in mind is that the rules at the moment are governed not by legal authorities but the executive and public health authorities and norms. Covid-19 is a public health crisis and can cause harm to others, applying that standard, now employers can test an employee for the Covid-19 illness before allowing him or her inside the premises because the virus poses a “direct threat” to the health of others.

The commission has further said that the employers should first determine the efficacy of the tests being used from the U.S. Food and Drug Administration and other authorities.

The employers should further ensure that other protocols of keeping the infection at bay are followed, such as social distancing, sanitization, and regular cleaning and washing of hands. The employers are required by the authorities to provide a place of employment that is safe to work and does not have any hazardous substance under the Health Administration Act. Even the International Labor standards on occupational safety and health provide essential tools for governments, employers and workers to establish such practices and provide for maximum safety at work.

Legal Liabilities

The Occupational Safety and Health Act (OSHA) requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause the death or serious physical harm to … employees.” So it makes sense for the employers to take all possible precautions to test employees.

The employee’s right to privacy is guaranteed under the HIPPA and the ADA. But an employer can reveal that an employee working in a particular place has been compromised. Additionally, the Federal authorities have come up with an economic stimulus package to compensate for the loss of business and reimbursement to workers. Some businesses have resorted to furloughs and reduced hours of employment. Some states are providing compensation for the reduced hours, but it may vary from state to state. Worldwide the number of Covid-19 cases stands at 2,846,536 with 197,89 deaths. The United Staes is the worst-affected amongst all countries with 925,000 infected and 52,217 dead. The governments all over the world face a tough decision regarding the opening of businesses and allowing people back to work. Even with all protocols in place, the numbers of cases may see a spike once people rejoin work, and transport services are resumed.

Priyansha Mistry
Priyansha Mistry
Currently editor at The HR Digest Magazine. She helps HR professionals identify issues with their talent management and employment law. | Priyansha tweets at @PriyanshaMistry

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