EEOC Approves COVID-19 Testing by Employers

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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:

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:

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.

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