With COVID-19 Resurgent, Employers Confront Privacy Issues When Testing Employees

Excerpted from Lexology by Littler Mendelson PC

With the resurgence of COVID-19 infections across the United States, employers are facing growing pressure to ascertain whether their employees have contracted the virus. Temperature checks and symptoms screening, while helpful, will not identify employees who are asymptomatic and potentially contagious. This gap is critical because studies show that up to 45% of people infected with the virus do not show any symptoms.1 As a result, COVID-19 testing can be essential to remaining operational or reopening after a workplace outbreak.

The Equal Employment Opportunity Commission (EEOC) has issued guidance stating that mandatory testing of employees for COVID-19 falls within an exception to the Americans with Disabilities Act’s (ADA) general prohibition against mandatory medical examinations of employees. While lawful under the ADA, testing presents serious privacy and information security risks for employers. We describe in this article the common concerns raised at each stage of the testing process, from deciding whom to test to handling the test results. For each stage, we describe practical steps employers can take to help address these concerns.
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