Q: Are we allowed to ask an employee to get tested for COVID-19 before returning to work?
A: Now that more businesses are beginning to open, I’m hearing this question pop up.
In short, the answer is yes. But with a few caveats.
On April 23, the Equal Employment Opportunity Comission issued new guidance to employers that allows testing of employees for the presence of the COVID-19 virus prior to entering the workplace.
The EEOC reasoned that because any medical tests of employees must be “job related and consistent with business necessity” and that “an individual with the virus will pose a direct threat to the health of others”, employers may therefore “choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”
However, if you decide to test employees you should apply consistent criteria, such as, only those showing symptoms; or only those who’ve had close contact with infected persons; or only those who’ll have public-facing jobs. Also, beware of unfairness -for example, requiring only employees of a certain ethnic group or those who live with extended families to be tested—as it could be considered discriminatory. Consult the CDC.gov website, search for “re-open guidance”.
Of course, practically speaking, the EEOC guidance has little effect in that COVID-19 tests cannot be readily obtained by your average employer. But they will, hopefully soon. And once they become as available, reliable and timely as a drug test, employers can use them as part of their tool box as businesses begin to reopen.
Not surprisingly, the cost of the test will likely be borne by the employer, and also not surprisingly some lawyers have pondered whether the EEOC guidance leaves employers open to liability. What if they don’t test employees –either because they can’t get tests or can’t afford to pay for tons of testing-and then co-workers or customers get infected?
Lastly, the EEOC guidance also reminds employers that they need to keep all medical info about employees stored under restricted access and separately from the employee’s personnel file. Covid-19 medical files would include “an employee’s statement that they had the disease, or suspects they have the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.” In other words, the rationale for testing.
What worries or questions do you have about returning to work after quarantine? Please send them in and I’ll try to answer. Stay well, stay safe.
©Copyright Eva Del Rio
Eva Del Rio is creator of HR Box™ – tools for small businesses and startups. Send questions to Eva@evadelrio.com
