While you cannot test customers for COVDS-19, the appears to permit you to require your employees to undergo testing for the virus. The Americans with Disabilities Act (“ADA”) allows medical testing of employees if the testing is “job related and consistent with business necessity.” Since COVID-19 can pose a threat to the health of others in the workplace, the EEOC announced that employers may require testing of employees entering the workplace. For additional guidance, please click here. Employers must be careful to ensure that the tests administered are accurate and reliable. Employers should follow the guidelines published by the U.S. Food and Drug Administration, the CDC or other public health organizations related to testing. Of course, testing an employee will only show whether or not the employee had the virus at the time the employee was tested. The test, in no way, would indicate whether the employee would contract the virus in the future. Certainly, if an employee or customer is positive for COVID-19, subsequent testing to determine whether other employees were also infected would be advisable.
Regardless of whether you decide to test employees or not, it is strongly advised that employers implement practices to help prevent transmission to the greatest extent possible. Such practices require employees to maintain a minimum of 6’ of distance between each other; to wash their hands frequently, to wear suitable face masks, and to practice any other measures identified by the employer.