Can Employers Require COVID Testing of Returning Employees?

As employers reopen businesses across Florida, many are wondering if they can require a negative COVID-19 test before an employee is allowed back to work.  As background, there are 2 types of COVID-19 testing – a test to determine the presence of COVID-19 virus (viral test) – and a test to determine if an employee has COVID-19 antibodies (antibody test).  Medical testing of employees is regulated by the Americans with Disabilities Act (ADA) which states that any mandatory medical test of an employee must be “job-related and consistent with business necessity.”  Due to the current COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the ADA in the workplace, has issued guidance that COVID-19 viral testing of employees is allowable.  If done, employer testing must be conducted in a non-discriminatory manner.   So, an employer may choose to administer COVID-19 viral testing to employees before they enter the workplace to determine if they have the virus.

However, employers may not require COVID-19 antibody testing for employees returning to work, according to the EEOC.  After the Centers for Disease Control (CDC) issued interim guidelines that antibody test results should not be considered when returning employees to the workplace, the EEOC issued an FAQ on June 17 and disallowed the use of antibody testing before permitting employees to re-enter the workplace.

Antibody testing looks for signs in the blood that a person developed antibodies to fight the virus, meaning that a person was exposed to the virus. Antibodies are the body’s way of remembering how it responded to an infection so it can attack it again if exposed to the same pathogen.  An antibody test constitutes a medical examination under the ADA. In light of the CDC’s Interim Guidelines, the EEOC determined that an antibody test does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

It is also important to note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Other than testing, employers may also take other actions to protect employees and customers, including requiring workers to wear masks, checking employee temperatures, installing protective barriers, mandating social distancing and requiring COVID-19 symptom questionnaires daily.

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