Last week, the EEOC updated its Covid-19 guidance, stating that employers can require employees to participate in Covid-19 testing before they are allowed to enter the workplace, even if they do not exhibit symptoms of the virus, Lexology reports.
This guidance signals to employers that mandatory Covid-19 testing, when carried out in accordance with the requirements of the guidance, will likely not run afoul of the Americans with Disabilities Act. Previously, the EEOC stated that employers could screen for Covid-19 symptoms by taking the body temperature of employees, but had not addressed mandatory Covid-19 testing.
The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the Covid-19 pandemic, 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. Therefore an employer may choose 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. For example, employers may review guidance from the US Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note 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.
Based on guidance from medical and public health authorities, employers should still require — to the greatest extent possible — that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of Covid-19.