EMPLOYER DO’S AND DO NOT’S REGARDING COVID-19 TESTING
Effective June 17, 2020, the EEOC issued new guidance that employers may not require workers take tests that detect COVID-19 antibodies without violating the Americans with Disabilities Act.
An employer MAY:
- Ask employees if they are experiencing symptoms of the pandemic virus such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
- Administer the COVID-19 test if employees with the virus will pose a direct threat to the health of others in the workplace.
- Ask employees who become ill with symptoms of COVID-19 to leave the workplace.
- Ask for a doctor’s or clinic’s note that the employee who had COVD19 no longer has the active virus.
An employer MAY NOT:
- Use antibody test results “to make decisions about returning persons to the workplace,” because an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.
The guidance is available at:
If you need assistance navigating these uncertain times, please reach out to us. Our law office has remained open and continues to serve our clients. We are available by telephone, email and Zoom.
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