This week, as parts of the nation began returning to work, the EEOC responded to an increasingly urgent question: May employers test employees for COVID-19? 

The answer is yes. In an update to its core employer guidance on COVID-19, the agency confirmed that employers may test employees for COVID-19 before those workers enter the worksite. Prior to the pandemic, the Americans with Disabilities Act (ADA) would have prohibited employers from testing employees for COVID-19. But because infected employees currently "pose a direct threat to the health of others" in the workplace, testing employees for COVID-19 is, according to the EEOC, sufficiently "job related and consistent with business necessity" to pass muster under the ADA.

The EEOC's new guidance does not require COVID-19 testing; it simply permits it. The guidance advises employers who undertake testing to first review FDA, CDC or other government guidance on safe, accurate, and reliable testing methods. The guidance also reminds employers that a negative test result does not ensure an employee will be infection-free in the future. As a result, employers should still require-"to the greatest extent possible"-transmission prevention measures like social distancing and regular handwashing in the workplace. Finally, the guidance does not speak to COVID-19 antibody testing.

The current guidance follows earlier guidance from the EEOC in March that permitted employers to check body temperatures and to require a doctor's note from employees certifying their fitness to work.  In early April, the EEOC expanded that guidance to allow employers to ask whether employees are experiencing COVID-19 symptoms identified by the CDC, other public health authorities, and reputable medical sources.

Securing test information; recordkeeping. Remember that any information gathered from medical testing-including temperature tests or surveys asking whether employees are experiencing COVID-19 symptoms-must be treated as confidential under the ADA. Employers should only share test results or other confidential information with the employee's supervisor or manager and only on a need-to-know basis for job purposes. Employers should also store this confidential information in a secure location and separate it from personnel files. Finally, employers should consult their state and local laws to identify other compliance requirements. (See, for example, California's Confidentiality of Medical Information Act (CMIA), which requires California employers to obtain written authorization before disclosing medical information obtained from a provider of health care, health care service plan, pharmaceutical company, or contractor. Cal. Civ. Code § 56.20.)

Originally published APRIL 27TH, 2020

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