I’ll make this brief, since I know many of us are weary of reading anything related to COVID-19. My office has had numerous requests for information and advice related to employee testing in recent weeks. Here is some useful information, but as always – it’s not advice. Contact a lawyer for advice when you need it

Can Employers Require COVID-19 Testing of Employees?

Short answer: Yes, generally employers can require employees to get tested for COVID-19.

Why? Most employers are covered by the ADA (and Oregon’s equivalent), which allows employers to mandate medical tests so long as they are ‘job related and consistent with business necessity.’ Because employees with COVID-19 may pose a direct threat to the health of other employees, and employers have an obligation to protect against this, mandatory COVID-19 testing is generally ok.

How? Most employers cannot conduct their own testing – make sure employees get tested at a reliable testing facility.

Anything else I should be aware of? Yes – employers should always be mindful to test in a nondiscriminatory way, ensuring that mandatory testing does not target certain protected classes of employees.

How Should Employers Handle an Employee who Refuses to Test?

Some employees may cite a religious objection to the medical test. Employers must accommodate employee’s sincerely held religious beliefs[1] so long as such accommodation does not create an undue hardship[2] for the employer. In many cases, an employee’s refusal to test can still create an undue hardship regardless of the employee’s rationale because COVID-19 infection may still pose a direct threat to employees (see previous question).

Some employees may cite a disability-related objection to the test. If this happens, you must engage in the ‘interactive process’ consistent with any other disability (or perceived disability) and determine whether or not refusal to get tested can be reasonably accommodated (Can the employee work remotely? Are there any other accommodations that might work in this situation?) or if it causes an undue hardship[3].  

In some cases, employees may have other personal, non-protected reasons for refusing to test. In such an instance, employers may prohibit employees from coming to the workplace until they get tested.

As I tell my clients all the time, talk it out with your employee first. And document, document, document.

~ Abby

[1] Title VII of the Civil Rights Act of 1964

[2] This ‘undue hardship’ means ‘more than a minimal burden on operation of business’ and is a lower threshold for an employer to prove than the ADA definition of ‘undue hardship.’

[3] Under the ADA, ‘undue hardship’ means ‘significant difficulty or expense’ – a higher threshold for employers to prove than the EEOC standard above.