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Today, the Equal Employment Opportunity Commission (EEOC) released guidelines permitting employers to test for COVID- 19 at workplaces before employees enter without violating the Americans with Disabilities Act (ADA). These guidelines note that any medical test that businesses require workers to take must be “job related and consistent with business necessity” under the ADA, a framework that allows businesses to legally screen workers for COVID-19 since those who are carriers will “pose a direct threat to the health of others.”
The EEOC, however, warned that employers must “ensure” that any tests are “accurate and reliable.” Businesses should follow guidance from public health agencies about what constitutes safe and accurate testing, and be reminded that testing is not always accurate. Testing could yield false positives or false negatives.
The EEOC also cautioned: “Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.” Based on guidance from medical and public health authorities, employers should still require — to the greatest extent possible — that employees observe infection control practices (such as social distancing, regular handwashing, use of personal protective equipment, and other protective measures) in the workplace to prevent transmission of COVID-19.
Employers are required by the ADA to store medical information about workers separately from their personnel files, though they can keep information related to COVID-19 in the employees’ existing confidential medical files, according to the EEOC. Under EEOC guidelines, employers can alert public health agencies if they learn a worker has COVID-19 and share their identity, but information short of a positive test result, such as a temperature check, must remain confidential.
The EEOC guidelines are available at www.eeoc.gov/coronavirus.
JoLynn M. Scharrer leads Hunt Ortmann’s Employment Law Group. Hunt Ortmann continues to advise clients on a daily basis on all issues impacting the workplace, especially during the current “shelter-in-place” orders and other employer restrictions. She can be contacted at email@example.com or 626-440-5200.