EEOC Publishes Guidance on COVID-19 Testing

April 24, 2020

The Equal Employment Opportunity Commission has released guidance clarifying that "an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus."

"The Americans with Disabilities Act requires that any mandatory medical test of employees be 'job related and consistent with business necessity,'" the guidance notes.  "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." 

 The guidance directs that employers: 

  • Should ensure that the tests are accurate and reliable, 
  • May wish to consider the incidence of false-positives or false-negatives associated with a particular test, and 
  • 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.

Safe and accurate:  “Employers may review guidance from the U.S. Food and Drug Administration,”  the EEOC guidance says, “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.” 

The guidance raises several questions, such as whether antibody tests, which are not intended to discern who is infectious and whose accuracy has been questioned, are allowed. 

Meanwhile, Congress passed, and the President signed, a bill to replenish the small business loan/grant account.  The nearly $500 billion bill included $25 billion for testing. 

However, there are no details on the role business is required to take in administering tests as return to the office plans unfold.

More 11th hour deals:  Testing was the last piece of the puzzle as policy makers crept toward a deal over the past 10 days.  The final compromise requires plans from states and localities for how they will use the testing funds and mandating a federal strategic plan to help states increase testing and testing capacity.

Testing beginning abroad:  In Italy, employees at Ferrari may participate in voluntary coronavirus screening as the car maker pushes toward a return to more normal operations. Company employees and vendors along with their families may take a blood test to determine whether the worker is healthy or infected.  If the latter, a swab test will be administered.  Participating workers have access to an app that will alert them if they have been in contact with anyone who has tested positive for the virus. 

Even as Georgia, South Carolina, and a few other states move to open some businesses that have been shuttered, there is doubt that those states have conducted enough testing.  Medical experts from the World Health Organization and epidemiologists posit that we are doing enough testing when 1 in 10 tests are positive, as that demonstrates we are accurately capturing the scope of the epidemic in the population.  Meanwhile, in Georgia, for example, nearly one quarter of the tests come back positive, meaning there are likely many asymptomatic carriers in the state.

Outlook: Absent clear federal standards and requirements tied to funding for COVID-19 testing, it should be assumed that the responsibility for testing will fall to employers.