EEOC Greenlights COVID-19 Testing Before Entering Workplace
Under ordinary circumstances, the Americans with Disabilities Act prohibits employers from conducting medical examinations of employees except in very limited situations. But the worldwide COVID-19 pandemic is far from ordinary circumstances.
The EEOC has been revising and issuing updated guidance for employers about employee rights during pandemic conditions. In the agency’s most recent update, issued on Thursday, April 23, 2020, the agency announced that employers may administer COVID-19 testing as a condition of permitting employees to enter the workplace, so long as the tests administered are accurate and reliable. This is a logical development of earlier guidance permitting employers to take temperatures and screen for COVID-19’s most common symptoms. The more we learn about the prevalence of asymptomatic carriers of the virus, the more important testing has become.
The EEOC guidance allows employers to test employees. It does not require employers to do so.
The full text of the EEOC’s guidance is posted below.
Contact any member of Stokes Lawrence’s Employment Group with questions about coronavirus safety and health measures at your workplace.
May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (Update 4/23/20)
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.
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.
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.