Passing the Test: EEOC Clarifies That Employers May Test for COVID-19
As employers begin seeing rays of light at the end of the tunnel and start thinking of reopening, a question at the forefront of those preparations is whether they can test their employees for COVID-19. Such a test would qualify as a medical examination subject to restrictions under the Americans with Disabilities Act (“ADA”). Specifically, an employer would need to be able to establish that the test was job related and consistent with business necessity. The Equal Employment Opportunity Commission (“EEOC”) has now provided guidance making clear that employers can take this step.
Before COVID-19 broke onto the scene, the EEOC had provided guidance for employers regarding how to respond in the face of a pandemic. That guidance served as the basis for employer decisions as they attempted to navigate a myriad of novel situations created by the novel coronavirus, but it did not specifically address COVID-19 testing.
In its original guidance regarding COVID-19, the EEOC acknowledged that the spread of COVID-19 is a “direct threat,” and that temperature screenings were therefore appropriate. In guidance released on April 23, 2020, which can be found here (see A.6), the EEOC expanded that guidance to clarify that employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
Nevertheless, employers must still ensure that any testing is consistent with ADA requirements, including that the tests being used are accurate and reliable. On this issue, the EEOC pointed employers to guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing. Additionally, while testing evaluates whether an employee is infected at the time of the test, it is really only a snapshot of that moment in time and employees who test negative could subsequently become infected. As a result, employers must still continue to implement other safety measures, such as social distancing and other hygiene requirements.
In addition to ensuring accurate testing methodologies, employers should also receive written consent from employees before requiring mandatory testing. Polsinelli has worked with a number of testing providers, and can assist employers in implementing effective testing regimens.