Updated EEOC Guidance for Employers Permits Testing for COVID-19

By Tiffanny Brosnan, Kevin M. Brown, Joseph A. Kroeger, Gina L. Miller, Swen Prior, David P. Williams, Joshua R. Woodard, Elizabeth S. Wylie, and Marian Zapata-Rossa

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently published updated and expanded technical assistance addressing questions arising under federal equal employment opportunity laws related to the COVID-19 pandemic. The April 23, 2020 guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” expands on previous guidance and addresses COVID-19 testing by employers. The EEOC states that COVID-19 presents a direct threat to the health of others sufficient to justify testing employees but cautions that employers should only use tests that are “accurate and reliable.”

As businesses evaluate reopening, the EEOC provides helpful guidance as to what testing is permitted.  Specifically, the EEOC states that employers may require a COVID-19 test prior to allowing employees to enter the workplace.  The EEOC also takes the opportunity to remind employers that “any mandatory medical test of employees be ‘job related and consistent with business necessity.’”

The EEOC also instructs employers to ensure that the tests are accurate and reliable and encourages employers to review guidance from the U.S. Food and Drug Administration, the CDC or other public health authorities. The EEOC also cautions employers to consider the incidence of false-positives or false-negatives associated with a particular test, that accurate testing only reveals if the virus is currently present and that a negative test does not mean the employee will not acquire the virus later.

Finally, the EEOC observes that, “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, wearing face masks, if required, and other measures) in the workplace to prevent transmission of COVID-19.”

This FAQ is the latest in a series of updates to guidance by the EEOC originally issued in March 2020. With an early focus on employers’ reasonable accommodation obligations under the ADA, the focus has shifted to the increasingly relevant topics of testing, medical inquiries and return to work considerations. Some of the other FAQs address employer inquiries to sick employees, confidentiality of medical records, hiring, furloughs, use of preexisting paid vacation and personal time related to Families First Coronavirus Relief Act leave, and the effect of government stay-at-home orders. The new technical assistance can be found at: eeoc.gov/eeoc/newsroom

In addition to the evolving FAQs referenced above, the EEOC has also revised its previous guidance on “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act” to address issues specifically concerning COVID-19. Importantly, the new guidance includes an express statement that “the ADA does not interfere with employers following recommendations of the CDC or public health authorities, and employers should feel free to do so.” That guidance is available at: eeoc.gov/facts/pandemic_flu