According to the EEOC’s updated guidance, during the course of the coronavirus/COVID-19 pandemic, employers may use the “direct threat” exception to conduct medical tests of employees entering the workplace.
Ordinarily, an invasive antibody test or infection test for COVID-19 would be an impermissible medical examination under the Americans with Disabilities Act (ADA). However, this medical examination is permitted during the pandemic because of the direct threat posed by infected employees.
Consistent with the ADA standard, employers should ensure that the tests they use are accurate and reliable. For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities. Employers may wish to consider the incidence of false-positives or false-negatives associated with any test they consider using. Finally, note that accurate COVID-19 testing only reveals if the virus is currently present at a threshold level; a negative test does not mean the employee will not acquire the virus later. Only antibody testing, once widely available, will show an employee with a past infection who is now immune.
Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular hand washing, and other measures) in the workplace to prevent transmission of COVID-19.