Board Converting News, May 4, 2020

EEOC Gives Employers Okay To Test Workers For COVID-19

According to a report by Law360, the U.S. Equal Employment Opportu- nity Commission said that employers will be allowed to test employees for COVID-19 before they enter a work site without running afoul of the Americans with Disabilities Act, but some employment law experts not- ed that the agency’s new guidance doesn’t shed any light on the legality of businesses using antibody tests.

In its latest add-on to technical assistance guidance for employers dealing with the novel coronavirus pandemic, the EEOC fleshed out its position on testing and medical exams. In one new entry, the EEOC noted that any medical test that busi- nesses require workers to take must be “job related and consistent with business necessity” under the ADA, a framework that allows businesses to legally screen workers for COVID-19 since those who are carriers 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,” the EEOC said. But the agency warned in its guidance that employers have to “en- sure” that any tests are “accurate and reliable,” suggesting that busi- nesses review guidance from public health agencies such as the Food and Drug Administration about what constitutes safe and accurate test- ing and keep in mind that certain types of tests could yield false posi- tives or false negatives. “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,” the EEOC said in Thursday’s guidance. “Based on guid- ance 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 handwash- ing, and other measures) in the workplace to prevent transmission of COVID-19.” Former EEOC Commissioner Chai Feldblum and her former Chief of Staff at the commission, Sharon Perley Masling — both of whom are now partners at Morgan Lewis & Bockius LLP — said the guidance is “very CONTINUED ON PAGE 16


May 4, 2020

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