Several people have asked me whether they can require daily testing of employees for the COVID-19. The short answer is yes. EEOC issued guidance confirming that, in light of the pandemic, employers not only can ask employees about virus-related symptoms, but also can require that employees submit to daily temperature testing. Note, however, as we all have learned not all COVID-19 infected persons have an immediate fever.
Employers have begun to assess whether to require employees to submit actual COVID-19 testing as a condition of entering the workplace, rather than relying on self-reporting. Under typical circumstances, such a requirement would present substantial concerns under the ADA, which generally forbids employer-mandated medical testing unless that testing is job-related and consistent with job necessity. However, on April 23, 2020, the EEOC updated its COVID-19 guidance for the time-being. Under the current circumstances presented by the pandemic, “employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus” because an individual with the virus will pose a direct threat to the health of others. The guidance explains that employers who decide to require testing should ensure that the tests are accurate and reliable.
Although the updated guidance provides a welcome signal that employer-required COVID-19 testing will not run afoul of the ADA, employers must be mindful that a decision to require testing implicates many other important considerations. For example, employers must ensure that any information obtained from testing is kept confidential. Employers also must consider whether time spent by employees taking tests is compensable time under the Fair Labor Standards Act and state wage payment laws.