EEOC Approves COVID-19 Testing by Employers

On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) updated its prior guidance on the Americans with Disabilities Act (ADA), finding that employers can administer COVID-19 testing to employees before they enter the workplace. In reaching this conclusion, the agency likened testing for COVID-19 to taking an employee’s temperature before entering a facility (which has been an authorized practice since the Coronavirus pandemic was first declared a national emergency). In all instances, efforts to administer mandatory medical testing for COVID-19 must be “job-related” and “consistent with business necessity.” Tests for COVID-19 should also be “accurate” and “reliable” (according to the EEOC), and should incorporate guidance from the U.S. Food and Drug Administration and the U.S. Centers for Disease Control when administered to employees.

Although a pronounced shortage of testing supplies has plagued the United States since the inception of the current crisis, employers who successfully obtain and deploy testing materials need to keep several important considerations in mind:

• Any testing or screening for COVID-19 must be conducted in a non-discriminatory manner, which likely means that every employee entering a facility must be tested (without exception).
• Any testing or screening that is broader than necessary to identify the presence of COVID-19 will likely be unlawful.
• If the results of testing are retained in any form, they will need to be treated as confidential medical records under the ADA.
• Assuming employees will not be permitted to enter a facility until the results of testing are known, wage and hour laws will require employers to pay employees for time spent waiting to be tested and time spent waiting for test results.

In addition to the above concerns, employers will need to address many difficult issues that will arise in connection with an employee’s response to a mandatory testing program. For example:

• Employers will need to consider what to do in the event that an employee refuses to submit to a medical test for COVID-19.
• Employers will need to consider when and under what conditions an employee who tests positive for COVID-19 can return to work.
• Employers will need to consider what to do if an employee requests an accommodation that would require an alternative testing method.
• Employers will need to consider what degree of authorized consent they need to obtain from employees prior to conducting testing.
• Employers will need to consider the margin of error (e., the rate of “false positives”) inherent to any testing method selected. This is particularly true in light of well-documented issues with COVID-19 testing accuracy.

Not surprisingly – in light of the difficulties associated with mandatory medical testing – the EEOC is recommending that even in situations where testing is attempted, employers should still maintain social distancing practices and facilitate employee hand-washing to the greatest extent possible.

Mandatory medical testing for COVID-19 is certain to be a difficult and risky practice for employers. If you need assistance with regard to any aspect of this process, please contact the Labor & Employment Group at Burke, Warren, MacKay & Serritella.