{"id":1405,"date":"2020-04-28T21:09:00","date_gmt":"2020-04-28T21:09:00","guid":{"rendered":"https:\/\/www.bfvlaw.com\/eeoc-permits-employers-to-conduct-covid-19-testing-of-employees\/"},"modified":"2020-04-28T21:09:00","modified_gmt":"2020-04-28T21:09:00","slug":"eeoc-permits-employers-to-conduct-covid-19-testing-of-employees","status":"publish","type":"post","link":"https:\/\/www.bfvlaw.com\/eeoc-permits-employers-to-conduct-covid-19-testing-of-employees\/","title":{"rendered":"EEOC Permits Employers to Conduct COVID-19 Testing of Employees"},"content":{"rendered":"\n

There has been a lot of discussion about COVID-19<\/a> 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\u2019s publication, \u201cWhat You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws<\/a>.\u201d<\/p>\n\n\n\n

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\u2019s right to conduct more invasive testing to ensure infected employees do not enter the workplace.<\/a><\/p>\n\n\n\n

COVID-19 Testing of Employees<\/strong>
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\u2019s updated publication.<\/p>\n\n\n\n

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? <\/strong><\/p>\n\n\n\n

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” <\/p>\n\n\n\n

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<\/a> 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.<\/p>\n\n\n\n

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance <\/a>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. <\/p>\n\n\n\n

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.<\/p>\n\n\n\n

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. <\/p>\n\n\n\n

Additional Considerations<\/strong>
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.<\/p>\n\n\n\n

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:<\/p>\n\n\n\n