The Equal Employment Opportunity Commission (“EEOC”) has updated its guidance in light of the COVID-19 pandemic to confirm that employers may screen or test employees entering the work place for COVID-19. The EEOC update recognizes that an employee with the virus that enters the workplace poses a direct threat to the health and safety of others. Any such screening must be job-related and consistent with a demonstrable business necessity to comport with the Americans With Disabilities Act. Employers must also consider whether reasonable accommodations are available for employees having underlying medical conditions that make them vulnerable to COVID-19 or its complications.
Screening and testing can include temperature checks. Any testing methodology used should be proven to be accurate and follow the latest guidelines from the U.S. Food and Drug Administration, the Centers for Disease Control and the local public health authorities. Those guidelines are frequently updated so it is important to consult them regularly. It is critical for employers to respect employees’ privacy and assure the confidentiality of their personal health information. Social distancing, regular hand-washing and other cleanliness regimens should be practiced at all times.
This is a complex and developing area of employer-employee relations. Employers’ approach to screening and testing of employees for COVID-19 is fact sensitive and specific to their particular circumstances. Anti-discrimination laws and regulations remain in effect despite the COVID-19 pandemic and employers must continue to comply with them.
HKMP’s employment practice attorneys regularly advise and represent management and employers on employment-related matters and issues. Contact John S. Favate (
) for assistance.