It's OK to test your employees for COVID-19, but beware the legal risks.

With coronavirus testing becoming a more accessible option for employers, some organizations are considering making testing a part of their employee back-to-work screening requirements.

The EEOC recently gave the green light to employers, saying they can lawfully administer COVID-19 tests to employees without violating the ADA.

As with temperature checks (see page 1), such testing would normally be disallowed by the ADA. But because the coronavirus is a "direct threat," employers have carte blanche to test staff during the pandemic.

There are a variety of tests on the market and the EEOC says employers should ensure the tests are "accurate and reliable" in accordance with CDC and FDA guidelines.

For organizations considering virus testing, attorney Nicholas Reiter of the Venable law firm suggests they consider these legal risks:

Discrimination. Are all employees subject to mandatory COVID-19 testing? And if not, what is the employer's legitimate basis for testing some employees but not others?

Make sure any testing program is applied in a consistent, nondiscriminatory manner. If some employees are treated differently than others, an employer may face discrimination claims under the ADA or related state and local laws.

Confidentiality. Employers must maintain confidentiality of employees' medical information, including COVID-19 test results. After test results are received, the tester should share the results with a designated individual at the employer, who can then communicate the information to managers on a need-to-know basis only. The name of the individual tested should not be communicated unless necessary to prevent a direct threat to safety.

Also, the ADA requires medical information concerning an employee (including COVID documentation) must be maintained separately from the employee's personnel file and in a confidential and secure medical file.

Wage-and-hour issues. As with temperature checks, hourly employees may be...