The U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance to employers on April 23, 2020, that employers are allowed to test employees for COVID-19 before they enter the workplace.
The EEOC explained that the Americans with Disabilities Act (“ADA”) requires any mandatory medical tests of employees be “job-related and consistent with business necessity” and that “an individual with the virus will pose a direct threat to the health of others.
Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”
In regard to the testing, the EEOC warned and reminded employers that:
- Employers should ensure the tests are accurate and reliable.
- Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
- Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test result does not mean an employee will not acquire the virus later.
- Employers need to remember that the ADA requires all medical information about employees must be stored separately from their personnel file and must limit the access to this confidential information.
That final point is crucial. The EEOC states that employers may maintain all medical information related to COVID-19 in existing medical files – they do not need to create new COVID-19 files. These medical files would include “an employee’s statement that he has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.”
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If you think you may have a valid claim within our areas of practice, contact us online or call (619) 342-8000 to request a free consultation where we can help you understand your potential next steps.