CLIENT ALERT: EEOC OK's Testing Employees for COVID-19 Before Returning to Work

In new guidance published April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced that employers may choose to administer COVID-19 tests before allowing employees to enter the workplace. The EEOC’s guidance is limited to testing for active infections and does not address the propriety of antibody testing. It also assumes that testing will become widely available, which is not yet the case as testing largely remains limited to symptomatic individuals.

The Americans with Disabilities Act (“ADA”) prohibits mandatory medical tests unless the test is “job related and consistent with business necessity.” According to the EEOC, COVID-19 testing does not violate the ADA during the pandemic, because the presence of an infected individual in the workplace poses a direct threat to the health of others. Employers therefore can administer COVID-19 testing before employees are permitted to enter the workplace. As with any other employee medical information, test results must remain strictly confidential.

The EEOC cautions that employers must select a test that is accurate and reliable based on guidance from the Food and Drug Administration, the Centers for Disease Control, and state and local public health authorities. Employers also should remember that even if an employee tests negative for COVID-19 before returning the work, the employee could contract the virus later. Employers must still take steps to prevent the spread of infection by implementing infection prevention measures, such as social distancing, hand-washing, and/or the use of face masks, consistent with guidance from public health authorities.

Despite these limitations, administering COVID-19 testing may reduce the risk that an employee will bring COVID-19 into the workplace after stay-at-home orders are lifted. In the “new normal” after businesses reopen, employers also should consider whether employees should be tested after taking sick leave or when returning to the office after business or personal travel.

As federal and state governments move closer to lifting stay-at-home orders, our Labor and Employment Group is planning another of our COVID-19 webinar updates as a courtesy to clients where we will provide the most up-to-date information on best practices for bringing employees back to the workplace.

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