Return-to-Work Coronavirus Testing Will Not Violate ADA, EEOC Says

Author: Robert S. Teachout, Brightmine Legal Editor

September 14, 2020

Testing employees for the presence of the COVID-19 virus before allowing them to enter the workplace will meet the "business necessity" standard of the Americans with Disabilities Act (ADA) as long as it follows guidance from the Centers for Disease Control and Prevention (CDC).

That's according to the US Equal Employment Opportunity Commission (EEOC), which has updated its technical assistance document for employers on COVID-19 and the ADA.

The EEOC has added 18 questions to its What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws technical assistance document. In addition, the EEOC updated two existing Q&As.

The guide addresses common questions about COVID-19 and federal equal employment opportunity laws. The new Q&As incorporate information from other federal agency resources as well as two other EEOC technical assistance resources. The new questions cover information related to the following topics:

  • Disability-related inquiries and medical exams;
  • Confidentiality of medical information;
  • Reasonable accommodation;
  • Furloughs and layoffs; and
  • Age.

Among the updates, the EEOC clarified the following:

  • In regards to testing of employees for the presence of the COVID-19 virus before allowing an employee to enter the workplace, the ADA does not interfere with testing that follows guidance by the Centers for Disease Control and Prevention (CDC); such testing will meet the "business necessity" standard.
  • When checking employee's body temperatures during the pandemic, an employer may ask only one employee to have their temperature taken (as opposed to all employees) if the employer has a reasonable belief that the particular employee might have the disease (e.g., displays COVID-19 symptoms).

When it comes to workplace flexibility and disability accommodations, the revised EEOC guidance advises that employers should make sure not to treat older workers less favorably based on their age, and that it is permissible to invite employees to ask now for reasonable accommodations they may need in the future when they are permitted to return to the workplace.