In guidance issued on April 23, 2020, the Equal Employment Opportunity Commission (EEOC) stated that employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

What Does the Guidance Say?

The EEOC noted that the Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Accordingly, employers are authorized to take steps to determine if employees entering the workplace have COVID-19 on the grounds that an individual with the virus will pose a direct threat to the health and safety of others at the workplace.

The EEOC cautions that employers should ensure that the tests are accurate and reliable, and suggests that employers consult guidance from the U.S. Food and Drug Administration (FDA), the Centers for Disease Control (CDC), or other public health authorities’ guidance regarding what is considered safe and accurate testing, and to check such guidance for updates. The EEOC further notes that such tests may yield false positives or negatives, and that even accurate tests only reveal if the virus is currently present but do not indicate the employee will not acquire the virus later.

Finally, the EEOC states that employers should still require employees to observe other infection control practices such as social distancing, regular handwashing, and other measures in the workplace to prevent transmission of COVID-19.

So What Does This Mean For Employers?

While the EEOC guidance suggests that testing employees for the presence of COVID-19 would not violate federal anti-discrimination laws, it leaves open whether such a testing program is legally permissible under other federal and state laws or agency guidance in areas including:

• Workplace Privacy
• Occupational Safety and Health
• Workers’ Compensation

The EEOC guidance also generates substantial practical questions, including:

• What type of testing is permissible (e.g., only testing for the presence of COVID-19? Or also testing for the presence of related antibodies, which is substantially more invasive?);
• Whether any FDA-approved tests exist to satisfy even the EEOC guidance;
• What frequency of employee testing would be permissible (or even effective)?
• Where the testing must take place, given that the guidance permits testing of employees “before they enter the workplace”; and
• How employers should weigh the incidence of false positives or negatives associated with a particular test.

Littler will be publishing an in-depth review of these legal and practical issues in a forthcoming Insight.  Due to the complexity of this issue and the wide variation of regulations and permissible practices based on location, businesses should consult with competent employment law counsel before implementing a mandatory COVID-19 testing program.