Employers May Test Employees for COVID-19 Before Allowing Their Return to Workplace, EEOC Says

Written by Jeremy Mittman and Thea Rogers

The U.S. Equal Employment Opportunity Commission (“EEOC”) said in guidance released Thursday that employers may administer COVID-19 testing to employees in order to determine if they have the virus, prior to permitting them to return to the workplace.  The agency stated that this latest expansion of practical coronavirus pandemic guidance is consistent with the Americans with Disabilities Act (“ADA”), which requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  The EEOC has previously instructed employers to maintain COVID-19 employee health screening information and data (which includes temperature readings) confidential, as required under the ADA.

The agency cautioned employers that if they choose to administer COVID-19 testing to employees, they must “ensure” that any tests are “accurate and reliable,” suggesting that public health agency guidance, for example Food and Drug Administration guidance on what constitutes safe and accurate testing, should be reviewed.  The EEOC also reminded employers that certain types of testing has the potential yield false positives or false negatives (“accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later”).

Finally, the guidance noted that employers should, to the greatest extent possible, continue to require that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

In addition to the above, employers should also be mindful that it may not be possible to obtain sufficient testing for the entire workforce, and so should consider this fact prior to mandating return-to-work testing.