Can employers mandate COVID-19 testing?

COVID-19 commanded an understandably outsized presence in Jeff Bezos's annual shareholder letter last week. The Amazon exec laid out the company's plans for addressing the pandemic on a number of different levels, including building a testing lab for employees, along "with regular testing of all Amazonians, including those showing no symptoms."

It has become a given that Amazon would test employees exhibiting fever and other COVID-19 symptoms. The company is, after all, one of the primary retail backbones for the U.S. and a number of other countries. And while the World Health Organization has stated that it doesn't believe the virus can be transmitted via parcels, the virus has the potential to spread extremely quickly within a warehouse.

The notion of testing employees who don't exhibit symptoms has been a less pressing question, however, due in no small part to the limited availability of testing kits. But as the WHO, CDC and other organizations have made abundantly clear, it's entirely possible to carry the virus while remaining asymptomatic - a fact that's made the novel coronavirus all the more scary.

Once testing becomes more readily available, it will be important to determine whether employers can, in fact, mandate testing, regardless of whether employees exhibit symptoms. There are important matters of both public safety and personal sovereignty to take into account.

The U.S. Equal Employment Opportunity Commission has been actively updating guidance for employers under the Americans with Disabilities Act:

The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

Among the updated issues to deal with the pandemic is screening, which includes a temperature check. "During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus," the EEOC continues. "For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA."

We put the question to Tricia Bozyk Sherno, counsel at Debevoise & Plimpton, who focuses on employment and general commercial litigation.

"For current employees, a medical inquiry or exam is permitted for current employees only if the employer has a reasonable belief that a particular employee will provide a 'direct threat' due to a medical condition," Sherno explains. "For new employees, the ADA permits employers to conduct medical examinations after a conditional offer of employment is made, but before an individual begins working, provided that all employees in the same job category must be subject to the same examination requirement. The primary 'medical examination' considered by the existing EEOC guidance is temperature measurements. Available guidance does not yet address COVID-19 testing."

The current rules around testing aren't entirely clear under current guidelines, but expect that to continue to evolve as testing becomes more widely available and state governments begin to loosen stay-at-home restrictions. We can likely expect that the guidance will no longer apply once the pandemic is no longer deemed a threat. What remains consistent under ADA guidelines, however, is the illegality of firing an individual over a condition like COVID-19.

"The ADA prohibits discrimination against individuals with a disability and requires employers to provide reasonable accommodations for such individuals," says Sherno. "Local and state laws may also provide additional protections for impacted employees."