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The EEOC Now Gives Employers the Right to Administer COVID-19 Tests to Employees Before Entering the Workplace

The EEOC now gives employers the right to administer COVID-19 tests to employees before entering the workplace since such tests can indicate whether an individual may pose a direct threat to others.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

In recent weeks, the EEOC has updated its Q&A guidance to include a “Return to Work” section that covers topics such as the way businesses should handle requests by workers for accommodations and how to prevent potential harassment and discrimination when workplaces reopen. For more information: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

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