In a new April 23, 2020 guidance, the U.S. Equal Employment Opportunity Commission (“EEOC”) stated that employers are legally allowed to test employees for Covid-19 before allowing them to enter the workplace.
Under the Americans with Disabilities Act, a company may only require their employees undergo medical testing if it is “job related and consistent with business necessity.” According to the new guidance, “[a]pplying 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.”
The new guidance cautions employers to ensure the tests are “accurate and reliable.” It also states employers should require their employees to continue good infection control practices such as social distancing and regular hand washing.
The new guidance only appears to pertain to testing for active infections. It does not seem to address antibody testing, where an individual is tested to determine if they ever have been infected in the past.
This is a quickly developing area of law and it is recommended you consult with an attorney regarding your particular situation.
To read all of the EEOC’s Covid-19 guidance on various interpretations of employment laws, click here.