EEOC greenlights COVID-19 employee testing
In late April, the Equal Employment Opportunity Commission (EEOC) issued guidance that appears to clear the way for employers to conduct testing for the virus under certain circumstances. The
EEOC opined that during the current COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19, because if they do, these employees could pose a “direct threat” to the health of others.
How does an employer conduct these tests without running afoul of the Americans with Disabilities Act (ADA)?
Under ordinary circumstances, the ADA would deem this kind of testing an impermissible medical inquiry of the employee. However, by invoking the “direct threat” doctrine,
the EEOC is relying on an established exception that has been used in past ADA cases to justify employers taking action based on an employee's medical condition posing a threat to their colleagues' health. The EEOC also noted that the ADA requires any mandatory medical test of employees to be "job related and consistent with business necessity." It's important to note that EEOC guidance is not controlling authority but is a good source for taking cues on what will be considered proper and legal under federal disability laws.
What else did the EEOC say about these types of tests and preventing the spread of the virus?
The EEOC cautioned that employers should take reasonable steps to ensure the tests are accurate and reliable. Employers should therefore consult guidance issued by the U.S. Food and Drug Administration about the safest and most accurate testing options. The Commission also emphasized that implementation and enforcement of strict infection control practices like social distancing, regular hand washing and other measures of sanitization and safety should remain a top priority.
What other legal issues should an employer consider before implementing COVID-19 testing?
There are a host of collateral legal issues to consider, including does the employer or employee bear the cost of testing, and how to handle objections raised by employees, including on religious grounds. Employers should also consider the potential effect of false positives. Finally, employers should have a plan for which employees to test and how often. And remember, as the EEOC pointed out in its recent guidance to employers, a negative test today does not mean the employee will not become infected later, so vigilance and preparation remain key to this fight to keep the workplace open for business.