Business and Legal Insights

On April 23, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Q&A Guidance relating to COVID-19 and the Americans with Disabilities Act ("ADA") to clarify that employers are permitted to administer mandatory COVID-19 tests on employees before allowing them to enter the workplace without violating the ADA’s prohibition against medical examinations.  This update can be found at question A.6. of the guidance. In doing so, the EEOC reasoned that such testing meets the ADA’s requirement that mandatory employee medical examinations be “job related and consistent with business necessity,” because an employee entering the workplace with COVID-19 “will pose a direct threat to the health of others” within the work environment.

However, the EEOC also cautioned that employers who choose to perform such testing should take reasonable steps to ensure that the tests they utilize are accurate and reliable, consistent with ADA standards. The EEOC provides the following examples of steps that employers considering mandatory COVID-19 testing may take to ensure accuracy and reliability:

• Employers should review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing,
• Employers should review any relevant guidance from the CDC or other public health authorities relating to testing, and should check periodically for updates to such guidance,
• Employers should consider the incidence of false-positives or false-negatives associated with a particular test or tests, and
• Employers should note that accurate testing only reveals if the virus is currently present, and that a negative test does not mean that an employee will not acquire the virus later.

Finally, the EEOC makes clear that even if negative test results indicate that a particular workplace may be free of exposure to COVID-19, that employers should nonetheless continue to require—to the greatest extent possible—that employees observe infection control practices in the workplace, such as social distancing and regular hand washing.

If you or one of your clients has any questions regarding the new EEOC guidance outlined above, please reach out to a member of the Labor & Employment practice group for assistance.