According to the Equal Employment Opportunity Commission’s (EEOC) guidance, employers may test employees for COVID-19 before they enter a work site without violating the Americans with Disabilities Act (ADA).

The ADA places restrictions on inquiries that employers can make regarding an employee’s medical status. (42 U.S.C. § 12112(d)(4)(A).) Such restrictions prohibit employers from conducting a “medical examination” of their employees. The ADA defines a “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments,” including inquiring about or testing employee symptoms (e.g., body temperature). (EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, § B.2 of “General Principles” (2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html#4.)

However, in March of this year, the EEOC confirmed that employers may take the following actions during the coronavirus pandemic without violating the ADA:

  • Ask employees if they are experiencing symptoms of COVID-19, including fever, chills, cough, shortness of breath, and sore throat;
  • Measure employees’ body temperature;
  • Ask employees who become ill with COVID-19 symptoms to say home or leave work;
  • Require employees who were ill with symptoms of COVID-19 to provide a “fit for duty” note from their doctor before returning to work;
  • Screen all job applicants for the same type of job for symptoms of COVID-19 after making a conditional offer; and
  • Withdraw a job offer when the applicant must start immediately but tests positive for COVID-19 or has symptoms of COVID-19.

(EEOC, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act (updated March 21, 2020), https://www.eeoc.gov/facts/pandemic flu.html#14.)

On April 23, 2020, the EEOC further relaxed the ADA’s restrictions on employer-conducted medical examinations by allowing employers to test employees for COVID-19 before entering a work site.  (EEOC, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (updated April 23, 2020), https://www.eeoc.gov/eeoc/ newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.)

Employers who elect to test employees for COVID-19 should ensure that the tests are accurate and reliable under U.S. Food and Drug Administration, Center for Disease Control, and other public health authority guidelines.  Employers should also consider the incidences of false-positives and false-negatives associated with the particular tests they are using.  Additionally, employers should remember that a negative test only indicates that the virus is not currently present and does not indicate that the employee will not later acquire the virus.

The ADA requires that all medical information obtained about a particular employee be kept confidential and stored separately from the employee’s personnel file.  Employers may store COVID-19 related medical information in existing medical files, such as employee body temperature logs, but such files must be kept separate from personnel files.  Employers may disclose the names of employees who test positive for COVID-19 to a public health agency.

Should you decide to test employees for COVID-19, we recommend that you implement such testing uniformly and in a nondiscriminatory fashion.  For example, you should uniformly test each employee in a particular job-type, and not single-out specific employees for testing.  You should also emphasize that employees continue to observe infection control practices in the workplace (such as social distancing, regular handwashing, and other measures) and not rely on negative COVID-19 test results in lieu of such practices.

As always, thank you for allowing us to serve you and let us know if you have any questions about these guidelines or require more specific information.

By Abbey M. Jahnke