The U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance concerning COVID-19, affirming an employer’s ability to medically test its employees for COVID-19 before allowing employees to enter the workplace.  The new guidance expands employers’ options to include medical tests that detect the presence of the COVID-19 virus – not just temperature checks.  The EEOC considers COVID-19 tests to be permissible because an individual with the virus poses a direct threat to the health of others.

Going Beyond Temperature Checks

As previously reported in Employee Privacy Forecast: Temperature Checks, the EEOC issued guidance permitting employers to conduct temperature checks of employees to help prevent the spread of COVID-19.  However, as businesses prepare to return to work and create a safe work environment for both employees and the public, the EEOC expanded the right to conduct more invasive medical testing to ensure employees do not have COVID-19.

Testing for COVID-19

COVID-19 is a new virus and the availability of testing has been the subject of media attention the past several months.  Various manufacturers are racing to develop tests to rapidly detect the presence of the virus.  Currently all tests require some collection of the subject’s bodily fluid.  The EEOC provides guidance for employers administering COVID-19 tests:

  • ensure that the COVID-19 tests are accurate and reliable;
  • stay abreast of the latest public health authority instructions and guidance, including that from the S. Food and Drug Administration (FDA) concerning safe and accurate testing standards;
  • consider false-positives or false-negatives associated with a particular test; and
  • understand accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Takeaways for Employers That Intend to Test Employees for COVID-19

In addition to the guidance from the EEOC, employers that wish to perform COVID-19 tests on employees should follow some best practices:

  1. Establish policies and processes to administer tests uniformly;
  2. Medical tests should be administered by trained personnel or a third party professional;
  3. Administer the tests in the least invasive way possible;
  4. Ensure the appropriate disclosures are made to employees, including CCPA disclosures to the extent your business is covered by CCPA;
  5. If using a third party to administer the medical tests, ensure the appropriate consent and disclosures are obtained to share the data between the medical provider and business; and
  6. Employers receiving results should treat the records as confidential medical records.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.

As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules.  This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues

 

*This alert is provided for information purposes only and does not constitute legal advice and is not intended to form an attorney client relationship.  Please contact your Sheppard Mullin attorney contact for additional information.*