Editor's Note: This article, authored by Jacob Rheaume and Joseph Messer, originally appeared on the Messer Strickler, Ltd. Blog and is republished here with permission.
As the Nation slouches – ever so slowly – towards a full reopening, one fact has become clear. In a head-to-head match-up, a pandemic can and will outlast a human’s ability to out-wait.
While brave few never stopped the excursions outside their homes, the rest of us have to come to grips with returning to normal life in a COVID-19 rocked world. Business owners will be instrumental in assuring their employee’s return to work goes smoothly and safely as possible.
Business owners may consider several different strategies for ensuring their employees do not contract the virus or cause an outbreak. Some businesses have opted for conducting temperature checks while others have opted for coronavirus screening by nasal swab. Others still have considered conducting antibody tests via blood draws. But are these preventative measures legal?\
In order to be legal, the U.S. Equal Employment Opportunity Commission (EEOC) and Americans With Disabilities Act (ADA) require any mandatory medical test given to employees must be "job related and consistent with business necessity." Generally, a medical examination of an employee is job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that an employee’s ability to perform essential job functions will be impaired by a medical condition; or an employee will pose a direct threat due to a medical condition. Both temperature measuring and COVID screening are considered medical examinations under federal employment law.
Assessments of whether an employee poses a direct threat in the workplace must be based on objective, factual information, "not on subjective perceptions . . . [or] irrational fears". A “direct threat” is defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." The EEOC’s regulations identify four factors to consider when determining whether an employee poses a direct threat: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of the potential harm.
Thankfully for business owners who would like to require the testing of employees for the virus, governmental agencies have been labeling the coronavirus as a "direct threat" starting in March 2020. This means you should not fear violating the law by subjecting employees to temperature checks or screening. Prior to implementing any employee program to regularly administer temperature or COVID tests, business owners should become familiarize the current list of authorized COVID tests. COVID screening tests are frequently added or removed from the list of approved tests based on the latest evidence. Using an outdated test may cause test results that are of little or no use.
Limiting Principle: Avoid Anti-Body Testing
The EEOC has adopted the position that business owners cannot force workers to take COVID antibody tests. In a July 29, 2020 post the EEOC clarified that while businesses can require workers to take a viral test to determine whether they are actively infected, businesses have no legitimate interest in determining whether an employee previously contracted the virus. As such, business owners seeking to mitigate risk should focus on risks that are clear and present: actively seek to limit the chances your employees contract and spread the virus through the use of temperature checks and screenings.
By comparing the permissible medical exam techniques (temperature and nasal swab) and non-permissible (blood draw), business owners should gain a better sense of what is and is not acceptable conduct towards employees. Even in pandemics, the law protects employees’ privacy rights. Business owners should focus on taking measures that pursue safety without putting themselves in legal jeopardy.
 “What you should know about Covid-19”, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, last accessed 7/30/20.
 42 U.S.C. § 12112(d). Equal Employment Opportunity Comm’n, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act, § B of "General Principles" (2000), https://www.eeoc.gov/policy/docs/guidance-inquiries.html#4 [hereinafter Inquiries and Exams], last accessed 7/30/20.
 Id.; 29 C.F.R. pt. 1630 app. § 1630.2(r).
 29 C.F.R. § 1630.2(r).
 See, fn 2, supra.
 “Emergency Use Authorized Medical Devices”, https://www.fda.gov/medical-devices/coronavirus-disease-2019-covid-19-emergency-use-authorizations-medical-devices/vitro-diagnostics-euas, last accessed 7/30/20.
 See, fn 1, supra.
 “Employers Cannot Require Antibody Tests”, https://abcnews.go.com/Business/employers-require-covid-19-antibody-tests-eeoc/story?id=71319374, last accessed 7/30/20.