WASHINGTON — Question:
Can an employer mandate COVID-19 testing before an employee returns to the office?
Yes. Following new guidance from the Equal Employment Opportunity Commission, it would now be appropriate for an employer to mandate COVID-19 testing before an employee's return. However, the policy must be non-discriminatory, and consistent.
Scott Oswald, The Employment Law Group
The Equal Employment Opportunity Commission, April 23rd Guidance
The Verify team began by reaching out to Scott Oswald, an attorney at the Employment Law Group, who specializes in employment law.
"These are tough questions," he said.
Until recently, this type of testing would have likely been illegal, Oswald said. However, recent guidance from the Equal Employment Opportunity Commission has changed this.
On April 23, the EEOC released the following guidance about COVID-19 testing:
"The 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."
Oswald said that this announcement could have some major real-life consequences.
"The guidance that the EEOC gives is going to be in large measure, a kind of 'get out of jail free' card for employers," he said.
He said employers might feel safe doing this type of testing because they can point towards the EEOC guidance. However, Oswald said it remains unlikely that an employer will do this, unless it's a larger company.
Oswald said testing is not only logistically difficult, but also it can leave an employer liable for any mistakes.
"What is more likely is that an employer will do temperature testing," he said. "An employer will ask questions about exposure. And maybe some employers will require their employees to obtain return-to-work certificates from their doctors."