The Equal Employment Opportunity Commission (EEOC) recently issued guidance that employers may administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) to employees prior to entering the workplace. In accordance with the Americans with Disabilities Act, the mandatory testing must be “job related” and “consistent with business necessity.” This means that, under the current circumstances of the COVID-19 pandemic, an employer may require employee testing to determine if they have the virus, because an individual with COVID-19 entering the workplace will pose a direct threat to the health of others.
The EEOC further advised that employers who do enact a mandatory testing policy should ensure that the tests are accurate and reliable. Employers may rely on guidance from the U.S. Food and Drug Administration, Centers for Disease Control and Prevention or other public health authorities to determine what may be considered safe and accurate testing, and should check for updates (links below). Employers should be cognizant of the potential for false-positives or false-negatives associated with a particular test, and should understand that accurate testing only reveals if the virus is currently present.
With regard to hospital medical staffs (many of whom are not hospital employees), in non-pandemic times, the medical staff can (and many do) adopt a policy to require testing for infectious diseases as a condition of medical staff membership and privileging. For example, hospitals may wish to adopt policies to require flu vaccines for medical staff members. While currently there is no state law that requires health care workers to specifically undergo COVID-19 testing prior to patient contact, existing state laws, such as those that require tuberculosis (TB) testing of health care workers as a condition of employment, support the sentiment of mandatory screening of health care workers for infectious diseases before interacting with patients. (See, 22 C.C.R. § 70723(b).)
Furthermore, Governor Newsom’s March 30, 2020, Executive Order suspending the enforcement of hospital licensing, credentialing and privileging requirements due to the declared public health emergency, means that hospitals have increased flexibility to impose these types of requirements. However, as noted by the EEOC, any required testing for COVID-19 must be “job related” and “consistent with business necessity.” Hospitals that plan to implement mandatory COVID-19 testing should consult and work with medical staff leadership to develop policies that can be reviewed and approved by the medical staff.