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Labor & Employment News Alert

Employers May Require COVID-19 Testing

April 23, 2020

By: Justin M. Harrison

Many employers have furloughed or laid off employees because of the COVID-19 pandemic. As employers begin to assess their ability to ramp up operations and call employees back to work, one question to consider is whether employers can require their employees to be tested for COVID-19. On Thursday, April 23, 2020, the EEOC provided some guidance regarding that question.  

The Americans with Disabilities Act generally prohibits employers from requiring employees to undergo mandatory medical testing unless doing so is “job related and consistent with business necessity.”  Because of the COVID-19 pandemic, the EEOC has determined that employers may require COVID-19 testing for employees entering the workplace to make sure that those employees do not pose a direct threat to the health of others. This rationale would apply to employees returning from furlough, as well as employees returning from Emergency Paid Sick Leave under the Families First Coronavirus Response Act.

Although the EEOC has given the greenlight for employers to require COVID-19 testing, the EEOC cautions that employers should make sure that the tests are accurate and reliable. This aspect of the guidance isn’t particularly instructive unless the employer happens to be a healthcare provider. In any event, most employers are probably better served relying upon a third party for COVID-19 testing. 

Despite the ability to require COVID-19 testing, the EEOC cautions employers to adhere to guidance from medical and public health authority by requiring employees to observe infection control practices, including social distancing and good hygiene.

 

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