[Update – On September 8, 2020, the EEOC updated its guidelines – click here for the updated guidance.]
Today, April 23, 2020, the EEOC issued new guidance to employers that permits mandatory testing of employees for the presence of the COVID-19 virus prior to entering the workplace. The EEOC issued the guidance on its FAQ, What You Should Know About COVID-19 ant the ADA, the Rehabilitation Act, and Other EEO Laws. In question A.6. the EEOC explained that the ADA requires any mandatory medical tests of employee 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’s guidance came with a few caveats for employers as well:
- 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.
What does this mean for employers?
Practically speaking, very few employers at this point can obtain COVID-19 tests for their workforce at this time, so currently the guidance has very little effect for employers. However, when tests become more prevalent, employers may use them in their toolkits and planning on how to re-open their businesses and planning for what steps they will take to protect their workforce.
The guidance still leaves open some questions, such as:
- Can employers require employees to obtain a test on their own prior to returning to work? The question addressed by the EEOC was phrased in the context of whether an employer can administer a COVID-19 test to employees.
- If an employer can require employees to obtain a test on their own, who is responsible for paying for the tests?
- Does this guidance leave employers who cannot obtain tests or afford to pay for testing of their workforce open to potential liability because they did not test their employees?
The EEOC’s guidance also sets forth that employers need to remember that the ADA requires all medical information about employees must be stored separately from their personnel file and limit the access to this confidential information. The EEOC explains in question B.1. that employers may maintain all medical information related to COVID-19 in existing medical files (employers do not need to create new COVID-19 files). These medical files would include “an employee’s statement that the has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.”