EEOC updates guidance on COVID-19 workplace testing

On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 FAQs to say that employers may test workers for COVID-19 (coronavirus) before they enter the workplace, because the virus poses a direct threat to health and safety. The EEOC has updated the guidance several times during the current pandemic to address employment issues under the Americans with Disabilities Act (ADA), such as taking employees’ temperatures, keeping sick employees out of the workplace, and maintaining the confidentiality of employees’ medical information. The most recent FAQ (Question A.6) includes guidance for employers on administering COVID-19 tests (i.e., not just temperature-taking, but actually determining whether someone has the virus). The EEOC says the tests must be accurate and reliable. If and when workplace tests become available, the EEOC encourages employers to review guidance from the U.S. Food and Drug Administration (FDA) as well as the Centers for Disease Control and Prevention (CDC) or other public health authorities to verify that a desired testing method is safe and accurate. As with all medical exams required by employers, the tests must be job-related and consistent with business necessity in order to be permitted by the ADA.

Tips For Employers: The EEOC likely issued this guidance to prepare for a time when COVID-19 test kits are more readily available than they are currently. If you’re considering testing for COVID-19, you’ll need to ensure the process itself is as safe as possible and doesn’t expose workers to further risk of contagion. For example, you should enforce appropriate physical distancing for those waiting to be tested and require protective measures during the tests. If a test becomes available that allows employees to reliably self-administer their own test, it would greatly reduce the risk of spreading the virus through physical proximity. If it’s necessary to have someone else administer the test, however, consider contracting with trained medical staff who will follow appropriate protocols. Contact your Vigilant Law Group employment attorney with questions or for specific legal advice. For general guidance on the ADA, see our Legal Guide, At a Glance: Americans with Disabilities Act (ADA).