Testing Employees for COVID-19: What Employers Can and Cannot Do

COVID-19 is still among us. Indeed, there are areas of the country where COVID-19 cases are surging.  In those areas especially, employers want to minimize the spread of the virus to other employees and customers or clients. So what tests can an employer require from employees to determine whether they have COVID-19?

For the answer to this question, we look at guidance issued by the U.S. Equal Opportunity Commission (EEOC).  The EEOC issued some technical assistance questions and answers entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”  And what the EEOC wants employers to know is that the EEOC considers testing employee temperatures or testing for COVID-19 to be “medial examinations,” and medical examinations must generally be job-related and consistent with business necessity.  

According the the EEOC, employers may do the following:

• Employers may measure employees’ body temperature.
• An employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. This is the testing, generally via a swab, to determine if someone has an active case of COVID-19. As discussed below, antibody tests are treated differently.

Employers may not do the following:

• Employers cannot require antibody testing before allowing employees to re-enter the workplace.  In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” 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. 

It is also important for employers to maintain all information about employee illness and testing as a confidential medical record in compliance with the ADA. The ADA requires that all medical information about a particular employee be stored separately from the employee’s personnel file, thus limiting access to this confidential information. 

An employer should not reveal the identity of an employee who is sick with COVID-19 to other employees or the general public. (And please–make sure your employees don’t post this kind of information on social media!). However, an employer can disclose the name of an employee to a public health agency when it learns that the employee has COVID-19.

Stay safe out there!