Employers May Test Employees for COVID-19

Shelter-In-Place orders around America are reaching their expiration dates, and many employers are making plans to bring their employees back to work—or for many, back to work in the office. However, the threats of COVID-19 have not been eliminated. While employers must maintain a safe work environment for their employees in light of the COVID-19 pandemic, they must also be careful that the safety measures they choose to implement do not violate their employees’ legally protected rights.

On April 22, 2020, the Equal Employment Opportunity Commission released guidance about how employers can ensure that employees are not spreading COVID-19 in the workplace without violating the Americans with Disabilities Act. As COVID-19 testing becomes more readily available, employers may want to test their employees for the virus before letting them enter the workplace. The EEOC has said that such testing is not a violation of the ADA, as any employees currently infected with COVID-19 pose a direct threat to the health of others. However, employers that administer such tests must ensure that they are accurate and reliable. The EEOC recommends checking with the Food and Drug Administration and other public health agencies about conducting accurate tests. Further, because the results of such tests are medical information, they must remain confidential.

Administering daily COVID-19 tests to employees may not be a realistic option for many businesses. Employers that do not adopt COVID-19 testing may still ensure a safe working environment by observing and implementing the CDC recommendations—such as increased hand-washing, frequently sanitizing common areas, and social distancing—to the greatest extent possible. Employers may continue taking other safety measures, such as taking employees’ temperatures prior to entering work. Like COVID-19 testing, the results of such temperature tests must remain confidential.

The EEOC has been providing regular updates about complying with the ADA in the wake of the COVID-19 pandemic, and it is important for employers to remain aware of the ways they can ensure a safe working environment without violating any of their employees’ rights.

myHRGenius and Thompson Coe continue to monitor these new HR laws and their impact on employers and employees throughout the country. For more information, including webinars, primers, summaries and podcasts on COVID-19 go to www.myhrgenius.co or www.thompsoncoe.com or call 651-389-5080.

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