By: Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  In its latest update to guidance for employers in the COVID-19 pandemic, the EEOC has now clarified that employers can test employees for COVID-19 without running afoul of the Americans With Disabilities Act (“ADA”). This new update provides a much-awaited opinion from the Commission on the use of medical testing to screen employees entering the workplace and is a must-read for employers. For employers currently crafting their return-to-work contingency plans, the EEOC latest announcement is a “must read.”

As we have reported here and here, the EEOC has updated its enforcement guidance memoranda for employers trying to navigate discrimination laws in the COVID-19 era, particularly the ADA and the Rehabilitation Act. On April 23, 2020, the EEOC released its latest update that specifically addresses whether an employer may administer a COVID-19 test before permitting employees to enter the workplace.

COVID-19 Testing Guidance

The EEOC’s updated guidance analyzes whether employers can administer a test that detects the presence of COVID-19 before allowing employees to come to work.

The EEOC’s guidance definitively advises employers that they may take steps to screen employees for COVID-19 because an individual with coronavirus poses a direct threat to the health of others, which means that an employer can administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Though the EEOC gives employers the go-ahead to move forward with testing, the guidance also issues a few notes of caution. First, the Commission reminds employers that they should ensure that the tests are accurate and reliable, which can be accomplished by reviewing guidance from the U.S. Food and Drug Administration, the CDC, or other public health authorities about what tests may be considered safe and accurate. Second, the EEOC cautions that some tests may cause false-positives or false-negatives. Finally, the Commission warns that a negative test does not mean the employee will not acquire the virus later, so employers should continue to implement and follow social distancing and safety protocols.

Implications For Employers

The EEOC’s latest guidance provides employers latitude to implement COVID-19 testing before employees enter the workplace, guidance that will prove valuable as employers start exploring possible methods to bring employees back to work. Before implementing any testing, however, employers should seek to confirm that any tests used are safe and accurate and, if necessary, seek assistance from public health authorities or medical professionals to verify and interpret test results.

We encourage all employers to review in detail the entirety of the EEOC’s guidance here, and to review Seyfarth Shaw’s COVID-19 Resource Center for additional guidance and information. Seyfarth Shaw also has a response team standing by to assist however we can.