EEOC Guidance Permits Employee COVID-19 Testing

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Yesterday, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related guidance to address the issue of employers testing employees for COVID-19.

Specifically, the EEOC opined that “…employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

In line with the above guidance, employers should:

  • Ensure that tests are accurate and reliable (this may require reviewing guidance from the U.S. Food and Drug Administration (“FDA”) or the Centers for Disease Control and Prevention (“CDC”) on what constitutes accurate and reliable testing);
  • Consider the possibility of false-positives and false-negatives from testing;
  • Require that employees observe infection control practices in the workplace; and
  • Be aware that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.

However, employers should not:

  • Disseminate the identities of individuals who have tested positive for COVID-19 to the workplace;
  • Ask potential new employees to be tested for COVID-19 until a conditional offer of employment has been made;
  • Use testing as a substitute for infection control practices and regular sanitization of the workplace; and
  • Discriminate in the manner in which employee COVID-19 testing is conducted (ex. measuring body temperatures for some, but not all, employees).

An employer may ask employees screening questions about COVID-19 symptoms and may measure employees’ body temperatures before beginning work. However, if an employer chooses to ask questions about symptoms or measure body temperatures, the employer must do so of all employees. The questioning and temperature measuring cannot be limited to certain employees. Furthermore, if an employee exhibits symptoms of COVID-19 while at work, the employer may send the employee home.

Our office will continue to monitor federal and state guidance and legislation for further developments related to COVID-19. If you have any questions, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.