EEOC Provides Guidance on Employee Testing for COVID-19


Posted by: Chris

The Equal Employment Opportunity Commission (EEOC) has updated its guidance for screening employees returning to the workplace in light of regulations restricting employers from making certain medical inquiries under the Americans with Disabilities Act (ADA) and the Fair Employment and Housing Act (FEHA). Following are some highlights:

Detection testing.  Employers may conduct testing of employees to determine whether they have the virus. This is allowed since any employee with the virus could pose a “direct threat” to others.  However, if the layout of a company’s workspace is such that employees do not pose a health risk to others, testing may not be permissible.  In addition, the EEOC notes that employers should anticipate potential objections by employees to COVID-19 testing based on religious or other reasons. 

Checking temperature.  It is permissible for employers to conduct a daily temperature check of all employees prior to their entering the workplace, but only “for the limited purpose of evaluating the risk that employee’s presence poses to others in the workplace as a result of the COVID-19 pandemic.”

Testing accuracy.  To comply with ADA standards, employers must ensure that COVID-19 tests are reliable and accurate.  The EEOC recommends that employers follow CDC and FDA guidance on testing protocols.  The agency has also cautioned employers that false negatives and false positives are possible and that unless an employer is conducting daily testing, it may not be an effective tool. 

Confidentiality protocols.  Under the ADA and FEHA, employers are required to store employees’ medical records separately from the employees’ personnel files in order to limit access to confidential medical information. COVID-19-related medical information -- including any employee statement that he or she has or suspects they have COVID-19 -- can be stored in existing medical files. 

In addition, if an employee reports to his or her supervisor that he or she is aware of another employee who has COVID-19 symptoms, ADA confidentiality does not apply.  The supervisor should convey the information to the appropriate personnel at the company for resolution.

Age discrimination.  Under the Age Discrimination in Employment Act (ADEA), workers who are 65 or older cannot be excluded from returning to work because they are in a higher risk group for COVID-19.  Employers may not bar older employees from the workplace, require them to work remotely or place them on involuntary leave based on age alone.

Have you been discriminated against or harassed at work? If so, seek legal representation from the experienced attorneys at Armstrong & Vaught, P.L.C. right away. Our team will fight to protect your rights and recover compensation from your employer. Call us now at 918-582-2500, toll-free at (800) 722-8880, or contact us online for a free consultation with a skilled attorney.