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Legally Brief: EOC Issues Guidance on the Permissibility of Mandatory COVID-19 Testing in the Workplace

On April 23, 2020, the EEOC issued new guidance clarifying that employers may conduct mandatory testing of employees for COVID-19 before they enter the workplace so long as the testing is “job-related and consistent with business necessity” but other questions remain unanswered.

  • The new guidance explains that employers may choose to test an employee for the virus before entering the workplace because an individual with COVID-19 will pose a direct threat to the health of others.
  • The new guidance also echoes earlier EEOC guidance clarifying that employers may measure an employee’s body temperature because the Centers for Disease Control and Prevention (“CDC”) and other public health authorities have acknowledged community spread of COVID-19 and issued attendant precautions.
  • Employers are instructed to “ensure that the tests are accurate and reliable” and “review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing,” as well as guidance from the CDC and other public health authorities.
  • Employers are also advised to “consider” the frequency with which certain tests produce false-positives or false-negatives. In addition, the new guidance reminds employers that testing only indicates if the COVID-19 virus is currently
  • Finally, the new guidance provides that employers “should still require” that employees observe infection control practices, such as social distancing, regular handwashing, and other appropriate measures.

Significantly, the new guidance does not address a number of questions that might arise in practice, including, but not limited to: what if tests are not generally available in your area, what kind of testing would be allowed (e.g., testing for the virus or the antibodies), how often an employer can require employees to undergo testing (e.g., which may be necessary to verify potential false-positives or false negatives), and what employment-related action an employer may take in response to an employee testing positive.

For more information or with questions, please contact ICADV Legal Counsel Kerry Hyatt Bennett at kbennett@icadvinc.org

 

 

 

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