There has been a lot of discussion about COVID-19 testing of employees. On April 23rd, the Equal Employment Opportunity Commission (EEOC) stated that employers may test employees for COVID-19 before they enter a work site without violating the Americans with Disabilities Act. This information is updated in the EEOC’s publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Previously, the EEOC issued guidance permitting employers to conduct temperature checks of employees to help prevent the spread of COVID-19. The EEOC has now gone a step further and expanded an employer’s right to conduct more invasive testing to ensure infected employees do not enter the workplace.
COVID-19 Testing of Employees
The EEOC cautioned that the tests should be accurate and reliable, noting that employers should check updates and review guidance from the Food and Drug Administration and U.S. Centers for Disease Control and Prevention. Below is an excerpt from the EEOC’s updated publication.
A.6. 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?
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 health and safety 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.
Additional Considerations
As shelter-in-place or stay at home orders begin to be lifted, employers seeking to either re-open or ramp-up their operations are going to face a number of challenges.
The ability to lawfully conduct COVID-19 testing to employees before they enter the workplace appears to be a critical step towards operating and maintaining a safe work environment. However, employee COVID-19 testing raises several other employer considerations:
- Conducting due diligence to choose reliable and accurate testing.
- Maintaining confidentiality of test results according to the ADA’s requirements.
- Conducting testing consistently and to all employees to avoid discrimination claims.
- Determining who is going to administer the tests. Does the employer have the proper staff to conduct the training? Will there be a enough vendors to conduct the training?
- Determining what to do when an employee tests positive. For example, under what circumstances will an employer allow an employee to come back to work?
- Determining under what circumstances an employer may re-test employees who are brought back to work. Should an employer test employees who display symptoms of COVID-19 or send them home to be self-quarantined and tested elsewhere?
- Whether declining to test employees will expose the employer to liability.
Conclusion
The EEOC’s guidance offers some peace of mind to those employers who wish to screen employees for COVID-19 before returning them to the workplace. However, the guidance leaves many unanswered questions. Employers should continue to monitor agency websites and developments on a regular basis to help navigate return-to-work procedures and policies including, but not limited to, COVID-19 testing of employees.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
