In recent weeks, the Centers for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) have provided guidance for employers contemplating testing employees in the midst of the coronavirus pandemic.
There are two tests for employers to consider; one is a “viral test,” to determine if someone has an active case of COVID-19. The other is an “antibody test,” to detect past infection with SARS-CoV-2, the virus that causes the COVID-19 disease.
The EEOC has provided guidance about the legality of these tests. On June 17th, it decreed in its Q&A on COVID-19 that it is a violation of the ADA for an employer to require the antibody test. At the same time, it confirmed an earlier determination that employers may require the viral test before allowing employees to enter the workplace. Inferentially, though, employers may wonder when they may test employees who are not about to enter the workplace.
The CDC has also provided guidance for employers on testing. It updated an earlier guidance on July 3rd with its wordily-titled “SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces.” Its stated purpose is to provide employers with strategies for incorporating testing into a workplace preparedness, response, and control plan.
Helpfully, the CDC identifies five situations in which employees may be tested, such as when an employee shows signs or symptoms consistent with COVID-19. The CDC guidance can be found here: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html#strategy.
Federal agencies like the CDC, the EEOC, and OSHA are constantly updating guidances such as these on COVID-19, though they (thankfully, to be honest) seem to be slowing down on them a bit. Stay tuned! At some point we might get all this figured out.