On April 24, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers about COVID-19 to include clear guidance that employers may test their employees for COVID-19 before allowing them to enter the workplace. Under the updated guidance, the EEOC explains that the Americans with Disabilities Act (“ADA”) “requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’" Since individuals with the virus “pose a direct threat to the health of others” in the workplace, mandatory testing of employees for COVID-19 before letting them come to work is job related and consistent with business necessity, as the testing allows the employer to protect its workers.
Employers that implement COVID-19 testing must still comply with ADA standards and ensure the tests they administer are reliable and accurate. The EEOC urges employers to seek guidance about safe and accurate testing standards from the Food and Drug Administration, the Center for Disease Control, and other state and local public health agencies. Employers also will need to determine how to address the potential for “false-positives or false-negatives associated with a particular test.” The EEOC reminds employers “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.” Employers also cannot test in a discriminatory manner.
For most employers, the limited availability of testing at the individual employer level will prevent mandatory testing for the near future. In the meantime, employers should continue to emphasize appropriate workplace infection control practices like frequent handwashing, increased cleaning/sanitizing, social distancing, and other measures. Employers also may continue taking employee temperatures, so long as they do so in a confidential manner. Please remember that temperature readings and COVID-19 testing results are private, health-related information that employers must keep confidential.
Z&R has developed form policies, request forms and other guidance documents related to COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:
- Coronavirus Considerations for Employers
- Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
- Federal COVID-19 response mandates paid leave (for now)
- Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
- Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
- Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
- FLSA Implications for Employers Considering Reductions in Pay
- Ohio Legislature Passes Emergency COVID-19 Response Legislation
- U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
- Loans, Unemployment Assistance, and Other Relief Under the CARES Act
- U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act
*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 medical testing or related issues, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.