The EEOC has issued welcome guidance for employers who are seeking to take all steps necessary to eradicate the virus from their facilities. This guidance is of particular importance for employers in seniors housing, assisted living, nursing homes and other health care related fields.
On April 23, the EEOC updated its COVID-19 guidance, expressly 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. 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 (ADA). 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 EEOC noted the ADA requires that any mandatory medical test of employees be "job related and consistent with business necessity." It applied that standard here when determining that employers may require an employee to undergo a COVID-19 test because an individual with the virus will pose a direct threat to the health of others.
The EEOC cautioned employers to ensure that they use tests that are “accurate and reliable.” In the guidance, employers are urged to review guidance from the FDA, the CDC and other public health authorities about what may or may not be considered safe and accurate testing, and to check regularly for updates. The EEOC also reminds employers that a negative test does not mean an employee will not be infected by the virus later. For this reason, employers should continue to follow the guidance of medical and public health authorities, including social distancing, regular handwashing, wearing masks and other measures.
Important Considerations for Implementing a Testing Process
When setting up a testing process, employers must consider a number of issues including:
- Conducting testing in a non-discriminatory manner, which likely means testing all employees entering the workplace;
- Maintaining the confidentiality of test results;
- Determining whether time related to testing is compensable under federal and state wage and hour laws;
- Having protocols in place for employees who refuse testing;
- Asking employees to sign consent or acknowledgement forms;
- Establishing protocols for notifying employees of results, and other notifications and precautions to be taken when an employee tests positive; and
- Determining when and under what conditions employees who test positive can return to work, consistent with guidance from the CDC and state and local public health authorities.
We strongly recommend consulting counsel regarding these and other issues prior to implementing a mandatory COVID-19 testing program.