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Friday, April 24, 2020

EEOC Says Employers Can Test Employees for COVID-19

Yesterday, the EEOC issued guidance on COVID-19 testing of employees (see language from the EEOC's website below). In short, the EEOC says that employers can administer a COVID-19 test to employees before allowing the employees to enter the workplace because an employee with the virus will pose a direct threat to the health of others. That assumes an employer can obtain tests, of course.  

You may recall that the EEOC had previously issued guidance saying that employers can take the temperature of employees during the COVID-19 pandemic.

The specific guidance from the EEOC's website on both of these issues is reprinted below:

The ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because 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.
Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.
Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. 
Generally, measuring an employee's body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
Of course, if an employee comes to work with cold or flu-like symptoms, the recommended course of action is to send the employee home.


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