Returning Employees and Testing: What Is Allowed?

With many places of business opening up, employers have many questions about what is allowed.  One common question is what kinds of testing are allowed of employees returning to work. The Equal Employment Opportunity Commission (EEOC) has provided guidance on this question.

In times other than a pandemic, medical tests are prohibited under the Americans With Disabilities Act (ADA). However, the EEOC has provided guidance that active coronavirus testing is allowed as the virus poses a “direct threat” to the health of others.  However, the testing must be “job-related and consistent with business necessity.” Detailed guidance on this subject is also available.

However, this direct threat is not present with antibody testing.  That is still prohibited under federal law for employees returning to work.  In their latest guidance, the EEOC followed the Centers for Disease Control and Prevention and stated the antibody tests should not be used to make decisions about returning persons to the workplace.  The presence of antibodies is not equated to a worker’s immunity from COVID-19. The guidance states that antibody testing does not meet the “job related and consistent with business necessity” standard.

Symptom and temperature checking are still allowed and encouraged.  As the guidance says: “Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.”

Should you have any concerns about returning employees and testing, please contact Employers Council.