In an important development for critical workforces that continue to operate, as well as businesses planning to reopen, the Equal Employment Opportunity Commission (EEOC) has advised employers that they may administer COVID-19 tests to employees before they enter the workplace.
The EEOC has previously taken the position that before permitting employees to enter the worksite, employers may, among other things, 1) ask employees if they have been diagnosed with or are experiencing symptoms of COVID-19; 2) measure an employee’s body temperature; and 3) require employees to stay home if they exhibit COVID-19 symptoms (including an elevated temperature), if they have tested positive for COVID-19, or if they have been exposed to COVID-19. But now, the EEOC has made clear that, because individuals with COVID-19 pose a direct threat to others, employers can “administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”
The EEOC advises that “employers should ensure that the tests are accurate and reliable” and “may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from the Centers for Disease Control and Prevention or other public health authorities, and check for updates.” When looking at potential tests, employers should also consider the incidence of false-positives or false-negatives associated with a particular test.
Even with this explicit approval from the EEOC, employers should consider practical and legal issues relating to COVID-19 test, such as:
- What to do if an employee refuses a test or requests an accommodation on the basis of disability or religion?
- What information does an employer need to provide employees about the test, including a test’s limitations and what employees should do if they receive a positive result?
- To whom the tests will be administered (all of the workforce, or is it defensible to administer the tests only to subsets, such as persons working in specific geographies)?
- Will a trained third party conduct the tests and, if so, how will HIPAA requirements be satisfied?
- How will the employer obtain the tests, which are presently in short supply?
- How often should employees be tested?
- What type of test will the employer choose and how invasive will it be?
- How long will it take to receive results of the test? Will the employer require employees to get the tests in advance of return to work so there is sufficient time to receive the results?
- How will the employer maintain confidentiality of the test results?
- Are employees required to be paid for their time getting tests?
- Are employers required to report positive test results to public health authorities?