EEOC Permits COVID Testing for Employees

On Thursday, the EEOC updated its FAQ Guidance for employers and employees in light of the gradual re-opening of the U.S. economy and the legal issues presented by the pandemic.  In Ohio, many workplaces will resume limited operations on Monday and even more the following week.  Most employees will be required by Governor DeWine to wear face masks (hopefully with the employer's logo on it because this is a branding opportunity) in order to avoid potentially spreading the virus to their co-workers and customers.  Employers are permitted to exclude customers who refuse to wear a mask (unless, of course, you are VP Pence, who has been roasted in the media this morning for not wearing a mask at the Mayo Clinic this week).  The EEOC has made clear that employers may also exclude employees until they -- like VP Pence --pass a COVID test.  That being said, most tests only reflects a brief moment in time and an employee can test negative on Monday and then positive on Tuesday.

May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? 4/23/20

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. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.