September 23, 2021

Volume XI, Number 266

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EEOC Confirms Employer-Mandated COVID-19 Testing Does Not Violate the ADA

On April 23, 2020, the EEOC updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which Hunton previously posted about here, to address questions that many employers are struggling with related to employee COVID-19 testing.  The EEOC’s new guidance confirms that employers are authorized to administer COVID-19 tests before allowing employees to enter the workplace, and that doing so does not violate the Americans with Disabilities Act (ADA).

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Under the current circumstances of the COVID-19 pandemic, an employee with the virus entering the workplace will pose a direct threat to the health of others, such that employers taking steps to determine if an employee entering the workplace has COVID-19 is “consistent with business necessity” and does not violate the ADA.

The results of an employee COVID-19 test is the type of medical information that must be kept confidential under the ADA and maintained separately from the employee’s personnel file.

The EEOC advises employers to review guidance from the U.S. Food and Drug Administration, CDC or other public health authorities regarding what options are considered to be safe and accurate testing.  The EEOC guidance also reiterates that employers — even those that choose to implement mandatory COVID-19 testing — should still 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.  Importantly, employers should remember that accurate testing only reveals if the virus is currently present and has no indication of whether an employee will acquire the virus at a later time.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 115
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About this Author

Anna Rothschild Labor Attorney Hunton Andrews Kurth
Associate

Anna is an associate in the firm’s Boston office and a member of the labor and employment group. She represents corporate clients in complex employment disputes, focusing her practice on restrictive covenant litigation, wage and hour class and collective actions, as well as providing general employment advice.

Anna earned her JD at Wake Forest University, and is a member of the Massachusetts, Boston and North Carolina Bar. 

617 648 2764
Christopher Pardo Employment Lawyer Hunton Andrews Kurth
Partner

Chris focuses his practice on the defense of complex employment cases in federal and state courts, arbitration, and before administrative agencies.

He represents a broad range of clients in employment, contractual, and labor matters, particularly in the defense of class and collective actions; complex wage and hour issues; trade secret litigation and restrictive covenant agreements; matters involving race, sex, age, disability, and pregnancy discrimination; wrongful termination; ERISA; RICO; and various state law claims, including wage and discrimination claims under the...

617 648 2759
Kevin J. White Employment Lawyer Hunton AK
Partner

Kevin co-chairs the firm’s labor and employment team and  has a national practice that focuses on complex employment litigation and employment advice and counseling.

In particular, Kevin has extensive experience representing clients in the retail, energy and financial services industries in discrimination class action litigation, governmental agency systemic discrimination investigations, and wage and hour litigation. Other significant aspects of his practice include conducting internal investigations, advising clients regarding executive...

202 955 1886 direct
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