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.