As employers begin formulating return-to-work plans, one step under consideration is workplace testing of employees for COVID-19. While such tests are not widely available yet, these plans have raised questions regarding their conformance with the Americans with Disabilities’ Act’s restrictions on medical examinations.
On April 23, the Equal Employment Opportunity Commission issued a technical assistance guidance stating that COVID-19 testing of employees meets the ADA’s requirement that such examinations are job related and consistent with business necessity. In other words, employers can require such tests as a condition of employees entering the workplace.
In its guidance, the EEOC cautions employers on the potential unreliability of certain tests, recommending that companies rely on FDA guidance when selecting tests for use with employees. The agency again advised employers to treat the results of such testing as confidential employee medical records. The technical guidance does not address the use by employers of antibody tests. Although these tests are not widely available, their possible use has raised concerns over disparate treatment of employees who do not possess COVID-19 antibodies and, therefore, possible immunity from the disease. The EEOC will likely issue guidance on these questions in upcoming weeks.
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