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Recent EEOC Guidance on Return to Work

On April 23, 2020 the Equal Employment Opportunity Commission (EEOC) provided additional guidance on issues related to COVID-19, the ADA, the Rehabilitation Act, and other EEO Laws.

This information supplements the EEOC publication on March 21, 2020 entitled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”.

The EEOC explained that the ADA requires any mandatory medical tests of employees 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.  Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”  

This guidance also offered some caveats for employers in testing their employees:

Although the ability to obtain these tests is currently limited, these tests may become more widely available as employers consider their use in navigating how to safely reopen their businesses during the pandemic. 

The EEOC stressed that employers need to remember that the ADA requires all medical information about employees to be stored separately from their employee or personnel files and that access to this information should be limited.  This information can be contained in existing medical files.

This latest guidance adds to the EEOC’s previous guidance which allows employers to do the following when reopening their businesses: