For the second time in the past seven days, the EEOC has updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. This time, the EEOC has clarified just one issue: employers have the option to administer COVID-19 testing to employees before they enter the workplace. The ADA requires all medical testing by employers to be “job related and consistent with business necessity.” The new guidance makes it clear that COVID-19 testing meets this criteria because employees who have the virus pose a direct threat to the health of others when they enter the workplace (and potentially spread it). Employers’ only requirement is to ensure that the tests are accurate and reliable, and they should follow guidance from the Food and Drug Administration and CDC to meet that goal. Though not explicit in the EEOC’s guidance, the costs of any COVID-19 testing would be paid for by employers as would be the case with other employer-administered or mandated medical exams.

By Rebecca D. Bullard, rbullard@dsda.com