On April 23, 2020, the EEOC updated is COVID-10 Guidance, affirming employers’ ability to test employees for COVID-19 before allowing employees to enter the workplace.
The new Guidance allows employers 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. Rely on FDA, CDC, and state health officials’ guidance and updates.
- Consider the incidence of false-positives or false-negatives associated with a particular test.
- Remember 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.
This supplements the EEOC’s earlier guidance that employers may take employees’ temperatures as part of their efforts to prevent transmission of the virus in the workplace:
“Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, the fact that an employee had a fever or other symptoms would be subject to ADA confidentiality requirements.”
This EEOC guidance must be evaluated in light of other federal and state laws involving workplace privacy and worker’s compensation. It also raises questions that employers should answer in their policies before implementing temperature and testing protocols:
- What are the parameters of permissible testing?
- What tests satisfy the EEOC guidance?
- What frequency of employee testing would be permissible?
- Where should the testing take place and who should administer the tests?
- How are employers to “consider” false positives or negatives associated with a particular test?