Key Points

Updated: April 24, 2020

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Today on Falsehood Fridays:

• Contrary to some reports, there is no evidence that the arrival of summer (or warmer weather) will inactivate or slow the spread of the coronavirus.

• Do not inject, inhale/sniff, ingest (consume/eat/drink) any disinfectants as a remedy for killing the virus! Disinfectants are chemicals that can cause irreparable damage and poisoning to the body (if consumed, injected, or inhaled).

• Do not find and sit in front of a UV machine to kill the virus!

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In food industry news:

• The CDC released its report on "Strategies to reduce COVID-19 transmission at the Smithfield Foods Sioux Falls Pork Plant”. TAG will provide its insights on this on Monday, April 27, 2020.

• The U.S. Equal Employment Opportunity Commission posted an update on Thursday, April 23, 2020 allowing businesses to test employees for COVID-19 before entering a worksite. We discuss this today in the Recommendations for Industry. Stay tuned as TAG will continue to unpack this.

Recommendations for

the Food Industry

EEOC Authorizes Employee COVID-19 Testing.

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On Thursday, April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions about COVID-19 that have arisen under the Federal Equal Employment Opportunity Laws.  

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In the update, EEOC also released a statement indicating that businesses can test employees for COVID-19 before allowing them to enter a worksite without running afoul of the Americans with Disabilities Act. The full Q&A as follows:

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May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus)

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The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity."  Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

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Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may 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 check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

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Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19

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Additionally, some employment law experts noted that the agency’s new guidance doesn't shed any light on the legality of businesses using antibody tests.

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TAG would like to emphasize EEOC’s caution to ensure that the tests are accurate and reliable. As we have previously discussed, not all tests are created equal (they are not all accurate nor reliable). Employers must consider the incidence of false-positives or false-negatives associated with any specific tests. Although the FDA may authorize a test, it merely means that the test has met minimum standards and does not reflect accuracy or reliability. If you need assistance determining applicable tests, please contact TAG.

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