The New EEOC Guidance on Testing and Other “Return to Work” Considerations

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On April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) published new guidance permitting employers to test employees for COVID-19 before allowing them to enter the workplace. Under the Americans with Disabilities Act (ADA), testing is permitted only when the test is “job related and consistent with business necessity.” This new guidance stems from the EEOC’s view that a COVID-19 test meets this standard because “an individual with the virus will pose a direct threat to the health of others.” Accordingly, assuming that testing can be obtained, employers can administer COVID-19 tests to their employees as a precondition of permitting them to return to work without running afoul of the ADA.

While clearly permitting COVID-19 testing, the EEOC also is advising companies to ensure that the tests are “accurate and reliable” by consulting guidelines from public health authorities such as the U.S. Food and Drug Administration and the CDC. Moreover, the EEOC reminds employers to consider the possibility of false-positives or false-negatives and to understand that a properly administered test only reveals if the virus is currently present – not whether the employee may later acquire the virus.

Prior EEOC guidance confirms that, under the ADA, all medical information about employees should to be stored separately from their personnel file and access to this confidential information should be limited.  The EEOC has also explained that companies can maintain COVID-19-related medical information in existing medical files. In other words, employers are not obligated to create new COVID-19 files, but need to maintain the confidence of all medical information even when investigating which other employees may have come in close contact with a diagnosed or symptomatic co-employee.

Notably, the new testing guidance is couched in the context of whether an employer can administer COVID-19 tests to employees. The guidance still leaves open the question of whether an employer can require employees to obtain a test on their own as a condition of returning to work (and who would then be responsible for paying for that test, a question that may be answered by state law).

Understanding that testing kits are still very difficult to obtain, the new EEOC guidance may not offer much present assistance in crafting “return to work” policies and/or protocols. As such, employers have to factor that testing may be a future, if not a present, component of their business planning. Perhaps recognizing this reality, the EEOC again unequivocally advised employers to continue mandating other infection control practices such as “social distancing” and regular handwashing “to the greatest extent possible” to prevent transmission of the virus. Accordingly, in the interim, employers still need to be mindful of applicable stay-at-home/shelter-in-place orders, which may mandate applying different rules to different categories of employees in terms of who may return to the physical workplace, as well as applicable guidance on maintaining safe workplaces for all employees who do return to the physical workplace.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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