Employers May Test Employees for COVID-19 According to New Guidance from EEOC
The Equal Employment Opportunity Commission (EEOC) enforces the Americans with Disabilities Act (ADA), Title VII (anti-discrimination laws), the Age Discrimination in Employment Act (ADEA) and other employment laws. On April 23, 2020, the EEOC published guidance to assist employers in handling COVID-19 in the workplace, permitting employers to test employees in order to prevent infected individuals from spreading the virus at the workplace.
The ADA allows employers to require an employee medical test only if the test is "job related and consistent with business necessity." The EEOC has concluded that employers may require medical testing for the COVID-19 virus under this standard, because an individual with the virus poses a direct threat to the health of others in the workplace if he/she is allowed to enter the workplace. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. The EEOC has not included testing for COVID-19 antibodies to determine whether an employee previously had COVID-19 in this current guidance.
The EEOC cautioned that employers must ensure that COVID-19 tests are accurate. Employers may look to the Food and Drug Administration and Centers for Disease Control for guidance as to the accuracy and safety of tests. Employers must be certain to comply with ADA guidelines when they receive the results of COVID-19 testing, which include: maintaining confidentiality with respect to the results of COVID-19 testing and keeping such records in a secure location, separated from the employee’s personnel file. An employer may opt to store all medical information related to COVID-19 testing in existing medical files. Employers may also establish separate medical files for the purpose of storing COVID-19 information about its employees. Any information related to the employer testing other than the test results itself should also be kept in the file. This information may include the employer’s notes regarding any discussion with the employee about COVID-19 symptoms or related issues, the employee's statement that he or she suspects or knows that he or she has the disease, or other related documentation. An employer must keep the name(s) of employee(s) who test positive for the virus confidential, except if they choose to report the information to a public health agency.
An employer may also screen job applicants for COVID-19 by requiring a medical test. After a conditional job offer is made to a potential employee, an employer may test the job applicant for COVID-19. An employer that chooses to test candidates for COVID-19 must test all applicants that apply for that job and may not selectively test only certain candidates. The employer may withdraw the job offer to candidates that test positive for COVID-19 or delay the start date of the new employee.
Takeaway: Keep COVID-19-related testing uniform and confidential.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.
Employer Alert: CDC Releases New Quarantine and Isolation Calculator
Employee Complaints About COVID-19 Safety Protocols are Triggering OSHA Investigations
Employment Law Update: New Jersey Executive Order to Require COVID-19 Vaccination & Booster for Workers in Certain Health Care Settings and Congregate Settings