EEOC Backs Employer Virus Testing to Combat ‘Direct Threat’

Businesses may test workers for Covid-19 before allowing them to enter the workplace, because an infected person “will pose a direct threat to the health of others,” the federal agency enforcing workplace civil rights laws said in updated guidance.

Federal disability law requires workplace medical tests to be “job-related and consistent with business necessity,” and therefore the severity of the public health emergency allows for Covid-19 testing, the Equal Employment Opportunity Commission said Thursday.

The agency has been updating its guidance throughout the pandemic, advising businesses and workers alike on topics like granting reasonable accommodations under the Americans with Disabilities Act and asking employees about virus-related symptoms.

The update for employers comes after the White House last week released a framework for reopening the country that advised businesses to develop plans for administering temperature checks in accordance with federal, state, and local regulations, the details of which may vary across jurisdictions.

The EEOC advised employers to review Food and Drug Administration guidance on what may be considered “safe and accurate testing,” in addition to guidance the Centers for Disease Control and Prevention has issued. The reliability and accuracy of testing methods is important, the EEOC said.

“Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test,” the agency’s guidance stated. “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.”