Fisher Phillips

The Centers for Disease Control and Prevention (CDC) recently released updated guidance on COVID-19 testing protocols for K-12 schools, making clear that the Equal Employment Opportunity Commission (EEOC) permits schools to implement required testing policies for their employees. However, the October 13 additions to the CDC’s published guidance suggests limits on how testing policies should be applied to students. Although CDC guidance is developed with public and charter schools in mind, private schools may also find these developments helpful.

Employment Guidance

As it applies to employees, EEOC guidance under the Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees (including COVID-19 testing) be “job related and consistent with business necessity.” As long as we remain in a pandemic, testing will be appropriate. If COVID conditions ease substantially, the EEOC may only permit testing in certain geographic areas. 

Schools may engage in initial and periodic COVID-19 testing as a part of their comprehensive strategies to slow the spread of COVID-19. When doing so, schools must ensure that the tests are considered accurate and reliable according to CDC and FDA recommendations and guidelines. The EEOC and CDC do not approve the use of antibody tests to make decisions about returning persons to the workplace, so employers may not require antibody testing of their employees. Additional information can be found on CDC’s SARS-CoV-2 testing pages.

Guidance For Student Testing         

As it applies to students, the most recent guidance from the CDC advises that testing should be done only on a voluntary – rather than mandatory – basis. Indeed, the CDC declares that “it is unethical and illegal to test someone who does not want to be tested, including students whose parents or guardians do not want them to be tested.” 

We do not disagree with this concept. We have stressed that a school should always receive parental consent if it believes that student testing is an important part of its overall health and safety COVID-19 strategy to prevent campus spread. Any parents who choose not to consent should have a distance learning alternative for their child. 

For those schools in areas of the country already considering limiting the availability of optional distance learning, this issue should be part of analysis in determining in the necessity of continuing voluntary remote learning. Of course, all the other testing safeguards should be in place for student testing, such as ensuring that the type of testing is reliable, that the results are confidential, etc. 

What Should Your School Do?

School leadership teams who may be considering implementing employee and/or student testing at school should consult with their lawyer to determine the scope of allowable protocols when imposing required testing, the type of test being considered, determinations of who will administer the tests, how tests will be paid for, and how results will be reported to ensure appropriate confidentiality. Some states are making free testing available to private and public schools. Be sure to discuss the strings attached to those programs with your school’s legal counsel as well.

Ten Stallings also contributed to the development of this legal alert.