New EEOC Guidance Allows Employers to Test Employees for COVID-19

In an effort to provide employers with more tools to make their workplace safe, the EEOC gave the green light on Thursday April 23, 2020, to test employees for COVID-19.  This announcement comes on the heels of guidance issued last week that confirmed that employers may take temperatures and make inquiries of their employees relating to symptoms of COVID-19. 

The EEOC clarified that the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.”  Applying this standard, 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. 

The EEOC further advised that employers should ensure that the tests used are accurate and reliable, employers should consider the incidence of false-positives or false-negatives and employers should note that while a positive COVID-19 test reveals if the virus is currently present, a negative test does not mean the employee will not acquire the virus later. 

Finally, the EEOC strongly recommended that no matter if a COVID-19 test is given or not, employers should still require to the greatest extent possible that employees observe infection-control practices such as social distancing, regular hand washing and other measures in the workplace to prevent transmission of COVID-19. 

For further information relating to these issues, contact the author or your regular AALRR attorney.

This AALRR post is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo

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