But employers should make sure the tests are accurate and reliable.
The EEOC has once again updated its question and answer series on how federal antidiscrimination laws impact workplace issues arising during the COVID-19 pandemic, this time addressing whether employers can test workers for coronavirus infection before they enter (or re-enter) the workplace.
The federal agency continues to periodically update its technical assistance publication, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, which expands on a previous publication that focused on the ADA and Rehabilitation Act, and adds questions-and-answers on testing, medical exams, and essential workers.
COVID-19 testing. The EEOC said that “employers may take steps to determine if employees entering the workplace have COVID-19 [citing earlier Q&A No. 2] because an individual with the virus will pose a direct threat to the health of others [linking to "Our first question" in a March 27, 2020, agency webinar]. Therefore an employer has the option of choosing to administer COVID-19 testing to employees before they enter the workplace to determine if they have the coronavirus.
The Commission noted the ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity”—the standard the agency applied here.
Make sure the test is reliable. Consistent with the ADA standard, the EEOC said that employers should ensure the tests are accurate and reliable, pointing to guidance from the Food and Drug Administration about what may or may not be considered safe and accurate testing. There is also guidance from the CDC or other public health authorities—employers should check for updates.
The Commission suggested that employers may want to consider the incidence of false-positives or false-negatives associated with a particular test. Further, it’s important to remember that accurate testing only indicates whether the coronavirus is currently present, and a negative test does not mean that the employee will not acquire COVID-19 later.
Remember infection control practices. Based on guidance from medical and public health authorities, employers should still require—to the greatest extent possible—that employees observe infection control practices to prevent COVID-19 transmission, such as social distancing and regular handwashing.
The EEOC will continue to monitor developments and provide assistance to the public as needed.
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