EEOC to Allow Employers to Test Employees for COVID-19 Upon Return to Work

April 27, 2020

The U.S. Equal Employment Opportunity Commission (“EEOC”) provided further guidance on how far employers can go to screen workers for health risks before returning to the workplace. Specifically, the EEOC stated that employers may administer COVID-19 tests of employees upon returning to work without contravening the Americans with Disabilities Act (“ADA”).  The EEOC noted that any medical test that employers administer must be “job related and consistent with business necessity” under the ADA, which allows employers to legally test employees for the virus considering individuals entering the workplace with the virus “pose a direct threat to the health of others.”

The EEOC recommends that employers review guidance from the U.S. Food and Drug Administration as well as the Center for Disease Control to “ensure” that any COVID-19 tests used are “accurate and reliable.”  Additionally, the EEOC acknowledged that test results are imperfect and may result in false-positives or false negatives.  The EEOC further noted 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.”  At a minimum, the EEOC recommends that employers should require that “employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.”

Pursuant to earlier guidance issued by the EEOC, employers may also measure employees’ body temperature for fever as a precaution to determine the likelihood of an employee having COVID-19.  However, it is worth noting that not all individuals with COVID-19 display fever symptoms.  Lastly, if an employee is sick with COVID-19, the ADA grants employers the right to require a doctor’s note certifying that an employee is fit to return to work.

Any information obtained from a COVID-19 test or from the results of a body temperature examination is considered medical information and must remain confidential under the ADA.  This means an employer must limit access to the information by storing the information separately from an employee’s personnel file.  However, an employer may disclose the name of an employee to a public health agency if it learns that an employee has COVID-19.

The complete EEOC guidelines can be found by clicking on the link below:

Link

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Posted by Camilo Burr

Law Clerk at Faruqi & Faruqi, LLP
New York Office
Tel: (212) 983-9330
Fax: (212) 983-9331
Email: cburr@faruqilaw.com
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