On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) released new guidance that permits employers to test employees for COVID-19. In an update to its publication, “What You Should Know about COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws,”[1] the EEOC advised that an employer “may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

The EEOC determined COVID-19 testing was consistent with the requirements of the Americans with Disabilities Act (ADA) because the ADA requires that any mandatory medical test is “job-related and consistent with business necessity.” 

However, the EEOC cautioned. “[E}mployers should ensure that the tests are accurate and reliable.” The EEOC recommended that employers review guidance from the United States Food and Drug Administration, the Center for Disease Control, or other public health authorities about what is considered safe and accurate testing and particularly consider the incidence of false positives or false negatives associated with a particular test. The EEOC reminded employers, “[A]ccurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.”

Even if employers decide to implement COVID-19 testing, the EEOC recommended that employers should still require, to the extent possible and in coordination with guidance from medical and public health authorities, its employees to observe infection-control practices such as social distancing, regular handwashing, and other measures to prevent the spread of COVID-19.

The EEOC’s new guidance provides employers with additional instructions as businesses begin to plan to reopen their workplaces after COVID-19. For specific questions about the EEOC’s guidance, employee matters during COVID-19, or about managing workplace safety or ADA obligations, please contact your Dinsmore Labor and Employment attorney.