As the COVID-19 public health emergency begins to (hopefully) progress down the curve and employers contemplate reopening and returning employees to the workplace, many employers are considering what measures they can implement to ensure that returning employees are not infected with the SARS-CoV-2 virus. In March 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance confirming that in light of the pandemic, employers not only can ask employees about virus-related symptoms, but also can require that employees submit to temperature testing. However, as we all have learned, not all COVID-19 infected persons have a fever.
As molecular and serological testing becomes more available, and in particular, tests that provide rapid results, employers have begun to assess whether to require employees to submit actual COVID-19 testing as a condition of entering the workplace, rather than rely on self-reporting or unreliable temperature tests. Under typical circumstances, such a requirement would present substantial concerns under the Americans with Disabilities Act (ADA), which generally forbids employer-mandated medical testing unless that testing is job-related and consistent with job necessity. However, on April 23, 2020, the EEOC updated its COVID-19 guidance to confirm that under the current circumstances presented by the pandemic, “employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus” “because an individual with the virus will pose a direct threat to the health of others.”
The guidance explains that employers that decide to require testing should ensure that the tests are accurate and reliable. It also emphasizes that employers should continue to require employees to adhere to infection control best practices, i.e., social distancing, frequent handwashing, etc.
Although the updated guidance provides a welcome signal that employer-required COVID-19 testing will not run afoul of the ADA, employers must be mindful that a decision to require testing implicates many other important considerations. For example, employers must ensure than any information obtained from testing is kept confidential. Employers also must consider whether time spent by employees taking tests is compensable time under the Fair Labor Standard Act and state wage payment laws. And employers must consider potential liabilities associated with possible false-positive and false-negative test results. Accordingly, employers should strongly consider consulting with counsel to discuss these and other issues prior to implementing a mandatory COVID-19 testing protocol.
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