January 15, 2021

Volume XI, Number 15

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January 15, 2021

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Employer Screening Protocols Can Now Include Testing

On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) issued much anticipated guidance to employers that permits mandatory testing of employees for the presence of the 2019 novel coronavirus (COVID-19) prior to entering the workplace. The EEOC issued the guidance in an updated version of its Technical Assistance Questions and Answers document, entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, question A.6.

The EEOC guidance states that the Americans with Disabilities Act (ADA) requires any mandatory medical tests of an employee to be “job related and consistent with business necessity” and that “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.”

The EEOC guidance addresses three key testing considerations:

  • Employers should ensure the tests are accurate and reliable

  • Employers may consider the incidence of false-positives or false-negatives associated with a particular test

  • Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later

This guidance still leaves open questions. For example:

  • Can an employer require employees to obtain a test on their own prior to returning to work? If yes, who is responsible for paying for the tests?

  • Will employers who cannot obtain tests or afford to pay for employee testing be vulnerable to potential liability?

WHAT DOES THIS MEAN FOR EMPLOYERS?

Practically speaking, this updated guidance will have little immediate impact on employers because FDA-approved COVID-19 tests are difficult to obtain. However, employers should keep this guidance in mind when preparing workplace COVID-19 response plans.

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Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume X, Number 128
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About this Author

Aaron McCann, Godfrey Kahn Law Firm, Labor and Employment Attorney
Associate

Aaron McCann is an associate in the firm’s Green Bay office and a member of the Labor, Employment & Immigration Practice Group. Aaron’s practice is focused on counseling and advocating for employers through all aspects of an employment relationship, beginning with issues in recruitment and hiring at the outset and continuing through severance discussions, termination, and, when necessary, post-employment litigation. Aaron has guided many clients through the wide array of legal issues that frequently arise at the end of employment and has represented clients in...

920-436-7671
Christine McLaughlin, Labor Attorney, Godfrey Kahn Law Firm
Shareholder

Christine Liu McLaughlin is a shareholder and chair of the Labor & Employment Law Practice Group in the Milwaukee office. Christine also is the immediate-past chair of the firm's Women's Leadership Forum and chair of the Diversity Committee.

Christine provides counsel on a wide variety of employment and labor issues ranging from interpretation and application of federal and state employment laws to specialized employee transition matters in complex business transactions.

Christine advises her clients on general...

414.287.9232
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