Can Employers Test For COVID-19?
For nearly two months now, the COVID-19 pandemic has had a firm grip on the United States. Like the rest of society, businesses are learning what can and can’t be done to continue functioning in this most unusual circumstance. And while most have had mass layoffs, there are still some businesses with hiring needs.
To ensure the safety of their staff and customers, businesses have begun contemplating whether to administer health tests to candidates as part of their hiring process. But are businesses legally able to do so?
The answer is yes; however, there are factors to keep in mind. The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces federal laws that make it illegal to discriminate against job applicants and employees based on a variety of conditions.
The EEOC recently issued guidance for businesses that are hiring during COVID-19:
If an employer is hiring, may it screen applicants for symptoms of COVID-19?
Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job. This ADA rule applies whether or not the applicant has a disability.
May an employer take an applicant's temperature as part of a post-offer, pre-employment medical exam?
Yes. Any medical exams are permitted after an employer has made a conditional offer of employment. However, employers should be aware that some people with COVID-19 do not have a fever.
May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it?
Yes. According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.
May an employer postpone the start date or withdraw a job offer because the individual is 65 years old or pregnant, both of which place them at higher risk from COVID-19?
No. The fact that the CDC has identified those who are 65 or older, or pregnant women, as being at greater risk does not justify unilaterally postponing the start date or withdrawing a job offer. However, an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.
And what about current staff? The EEOC provides guidance for employees as well:
May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?
The Americans with Disabilities Act (ADA) requires that any mandatory medical test of employees be "job-related and consistent with business necessity." Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.
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 physical distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.
For more detailed explanations to the above questions, along with additional Q&As, visit Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.