Key Takeaways:

• The EEOC has revised its guidance allowing employers to administer COVID-19 testing to employees

• Employers may take steps to determine if employees entering the workplace will pose a direct threat to the health of others under the ADA

• The guidance also addresses handling employees with underlying medical conditions making them more vulnerable to COVID-19

On April 23, 2020 and May 5, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) revised its initial guidance, “What You Should Know About COVID-19 and ADA Rehabilitation and other EEO Laws,” to address COVID-19 testing in the workplace. In the revised guidance, the EEOC allows an employer to administer COVID-19 testing to employees before they enter the workplace. The guidance suggests that because the Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be “job-related and consistent with business necessity,” when applied to the current COVID-19 pandemic, employers may take steps to determine if employees entering the workplace will pose a direct threat to the health of others. In addition, the guidance addresses how to handle employees with underlying medical conditions that make them particularly vulnerable to complications from COVID-19 and that employers must consider whether a reasonable accommodation is available for those employees.

As businesses prepare to re-open during these unprecedented times, employers must be cognizant of certain risks before administering tests to employees. We advise employers to be aware of the following risks, tips, and recommended practices:

• Employers should ensure that tests are accurate and reliable—a task that may prove difficult based on currently available testing.
• Employers should also follow guidelines from the U.S. Food and Drug Administration, Centers for Disease Control and Prevention, and other public health authorities to safely administer COVID-19 testing, and keep up with any relevant updates and changes.
• Employers should be mindful that an employee may initially test negative, but could later acquire the virus. Therefore, social distancing, hand washing, and other infection control practices should be in place to avoid the spread of the virus.
• Requests from employees for reasonable accommodations should be handled with care as we expect an increase in claims arising out of these situations.

If you have any questions about these changes to the laws or how it may affect your business, contact:

• Reshma Khanna
• Caroline J. Berdzik
• Peter J. Woo
• Kristin Klein Wheaton
• Or another member of our Employment and Labor practice