A number of safeguards can help employers detect and prevent the spread of COVID-19 in the workplace, from plexiglass barriers and masks to temperature checks and social distancing. But some employers might want to go a step farther and require employees to take a COVID-19 viral test as a condition of returning to the workplace. Is this legal?
According to recent guidance from the Equal Employment Opportunity Commission (EEOC), the answer is probably yes. The EEOC has stated that employers can generally require employees to undergo viral testing as long as the testing procedure complies with the Americans With Disabilities Act (ADA).
When it comes to workplace safety, the country has come a long way since the beginning of the pandemic. Some COVID-safe measures an employer can lawfully take include:
Most employers have successfully integrated COVID-19 safety protocols into their workday, but the problem remains that many infected individuals show no visible symptoms. This makes viral testing an indispensable tool for some employers, especially in workplaces where telecommuting is not a viable option.
The ADA prohibits workplace discrimination against anyone with a recognized disability. The law covers employers with at least 15 employees. In general, an employer cannot fire or discipline an employee because of a condition that limits a major life activity. Instead, the employer must provide a reasonable job accommodation, unless doing so would cause the employer undue hardship.
The situation, however, is different when it comes to communicable diseases such as COVID-19. While workers who contract these illnesses are still protected by the ADA, employers have more flexibility when it comes to regulating those who pose a “direct threat” to the health and safety of others.
The EEOC has updated its pandemic preparedness guidelines and deemed COVID-19 a "direct threat" due to its highly contagious nature. That means individuals with COVID-19 generally don't have to be accommodated in the workplace. It has also opened the door to coronavirus testing in the workplace.
In general, the ADA prohibits employers from requiring employees to undergo medical examinations. There is, however, an exception for tests that are:
According to the EEOC, coronavirus testing satisfies this standard because infected employees pose a direct threat to the safety and welfare of others. As a result, employers can require employees to undergo viral testing as a condition of entering the workplace.
Employers do not have unlimited discretion when it comes to COVID-19 testing. If you are required to undergo a viral test as a condition of returning to work, your employer must:
The last two factors above may dissuade you employer from implementing viral testing in favor of other COVID-19 safety measures. A false-positive result would be an unnecessary workplace disruption as healthy employees would be quarantined, while an accurate negative test is only a snapshot in time and provides no guarantee that the employee will not become infected at a later date.
Unlike a viral test that reveals whether someone is currently infected with COVID-19, an antibody test is a blood test that discloses whether someone was infected in the past. This type of medical evaluation is not recommended by the EEOC because it does not satisfy the ADA’s direct threat standard.
Like the EEOC, the Centers for Disease Control and Prevention (CDC) does not recommend antibody tests. The CDC, however, has approved viral testing provided it’s incorporated into a comprehensive plan that includes implementing workplace safety guidelines, other methods of screening, and contact tracing.
The viral test used by your employer must be approved by the federal Food and Drug Administration (FDA) to diagnose SARS-Co-V-2, the virus that causes COVID-19. Your employer should tell you in advance who will pay for the test and who manufactured the test. Your employer should also explain:
You should also be told what the test results mean, how they can be used, what happens when you test positive or negative, and the consequences for refusing to be tested.
It's possible that an employee could refuse testing based on a recognized disability under the ADA or a sincerely held religious belief consistent with Title VII of the Civil Rights Act. In these situations, the employer would have to provide a reasonable accommodation to allow the employee to work unless it doing so would be an undue hardship.
Some employees might refuse for purely personal reasons or because of a general skepticism about the virus. Given that COVID-19 poses a direct threat to the workforce, you could be risking your job if you refuse to be tested without a good reason.
Any COVID-19 viral testing policy implemented by your employer must comply with federal and state antidiscrimination laws. This means that protected classes of employees cannot be treated differently when it comes to who is tested, how the results are used, and the consequences for refusing to undergo a test.
If you feel that your rights were violated because of your employer’s COVID-19 testing policy, it’s a good idea to contact an experienced employment law attorney to discuss your legal options.