Hospitals, long-term care facilities, clinical labs, pharmacies, medical practices and dental practices may now test employees for COVID-19 prior to them entering the workplace.

Yesterday, the United States Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to provide that under the current circumstances presented by the COVID-19/Coronavirus pandemic, “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 guidance is accessible here: EEOC COVID-19 Guidance.

The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, the EEOC stated employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus poses a direct threat to the health of others.

Additional guidance is anticipated to be forthcoming and is expected to expound upon where and how to acquire COVID-19 testing kits and the protocols for utilizing the same. In the meantime, employers should ensure that the tests are safe, accurate and reliable, and consistent with ADA standards.

As a reference, employers can review guidance provided by the United States Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC) or other public health authorities about safe, accurate and reliable testing and other related details. The FDA and CDC guidance can be accessible here: FDA COVID-19 Testing Guidance and CDC COVID-19 Testing Guidance

Note that other standard employment issues should be considered in light of the COVID-19 testing discussed herein including, but not limited to, ensuring than any information obtained from testing is kept confidential. 

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