COVID-19 Testing Will Not Run Afoul of the ADA

April 27, 2020

On April 23, 2020, the Equal Employment Opportunity Commission ("EEOC") issued guidance to employers on COVID-19 virus testing of employees before entering the workplace. Specifically, the EEOC noted that the Americans with Disability Act requires any mandatory medical tests of employees be "job related and consistent with business necessity" and that "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."

Of course, there are issues for employers to keep in mind:

• Tests must be "accurate and reliable." Review should be made of which tests are considered safe and accurate by the U.S. Food and Drug Administration, the CDC, or other public health authorities.
• Consideration should be given to incidences of false-negatives and false-positives with a particular test.
• A negative test only means that the virus is not currently present, not that an employee may not acquire the virus later. Employers should continue to implement social distancing and other health and safety protocols.
   

Once testing becomes more prevalent and readily available, employers can confidently require testing before an employee enters a worksite. However, this EEOC guidance will assist businesses who are in the process of preparing return-to-work protocol.

For more information, please contact me at hquan@murchisonlaw.com. Our office remains fully operational to meet the needs of our clients during this unique time. 

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