EEOC Updates Guidance to Permit COVID-19 Testing

Last week, the EEOC updated its FAQs to reflect that employers may administer COVID-19 tests to employees before they enter the workplace to determine if they have the COVID-19 virus.  Although the guidance emphasized that certain tests may not always be accurate, and that the test does not mean an employee will not acquire the virus at a later date, the EEOC stated testing could be supported as a means to prevent a direct threat to others in the workforce.  The onus is on employers to ensure that tests are accurate and reliable, and the EEOC recommends that employers review guidance from the U.S. Food and Drug Administration, CDC and other public health authorities when selecting testing. The EEOC also emphasized that regardless of whether an employer conducts testing, the employer should still require employees to observe infection control practices such as social distancing and regular handwashing, to the greatest extent possible.  Employers who wish to engage in COVID-19 testing should, however, remember their obligations in terms of confidentiality of medical information and results, and should ensure that testing is done is a safe manner. 

The timing and content of this guidance is surprising, as the availability of FDA-approved testing is limited, and the guidance does not address whether antibody testing will be permissible, once available.  As employee testing is a complex area, employers with questions should contact any attorney at the Firm.

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