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EEOC: Testing Workers for Covid-19

June 29, 2020

The Equal Employment Opportunity Commission (EEOC) has updated a previous pronouncement it issued earlier in the pandemic. The EEOC, relying on guidance from the CDC, stated on June 17 that employers cannot require Covid-19 antibody testing before permitting employees to re-enter the workplace. However, employers are still permitted to administer Covid-19 viral tests before allowing employees to return to the workplace.

The Americans with Disabilities Act (ADA) regulates the ability of employers to require employees to undergo medical examinations. In April, the Commission explained that under the ADA employers could administer Covid-19 viral testing. The EEOC explained that the ADA dictated a different result for Covid-19 antibody testing. These tests are used to detect who had the virus in the past. 

While requiring antibody testing before reentry to the workplace is not allowed under the ADA, keep in mind that an antibody test is different from a test to determine if someone has an active case of Covid-19, which is called a viral test.

Other actions EEOC’s latest guidance says employers may take include new as well as returning employees:

  • Job applicants may be screened for symptoms of Covid-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job. 
  • Any medical exams are permitted after an employees has made a conditional offer of employment, including taking their temperature. 
  • An employer may delay the start date of any applicant who exhibits symptoms
  • An employer may withdraw a job offer if the applicant is needed immediately but exhibits symptoms.

The agency’s newest guidance also makes clear that an employee who requests an alternative means of screening due to health or medical condition, or for religious reasons, may be entitled to reasonable accommodation from the employer under the ADA. 
The commission also emphasized that employers should be aware that they have a legal duty to address possible ethnic harassment in the workplace that has arisen from the pandemic and people associated with the country of its origin This policy also extends to employees who are engaging in telecommuting by working from home.

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