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EEOC Issues Its Fifth Update Related to Discrimination and COVID-19 | FFS Insights

Teresa R. TracyBy Teresa R. Tracy

The Equal Employment Opportunity Commission (EEOC) is regularly updating previously-issued Technical Assistance Questions and Answers (i.e., issued March 17, March 18, April 9, April 17, 2020). It did so again on April 23, 2020. Our summary of prior updates can be found here and here. The EEOC continues to emphasize that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves and that employers should continue to follow the most current information on maintaining workplace safety.

The newly-addressed issue is summarized below:

Administering a COVID-19 test before permitting employees to enter the workplace:

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because 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.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may 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 CDC or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

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This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.

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