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2590 views   |   8   |   Last updated on Feb 03, 2022    Vaccines COVID-19

Some employers are requiring their employees to get vaccinated against COVID-19 or show proof of a recent negative test result. As noted in our other FAQ regarding COVID-19 testing, we have not found any state law that prohibits COVID-19 testing. At the federal level, the Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that an employer may ask all employees who will be physically entering the workplace if they have been tested for COVID-19.

If you aren't sure if your workplace's COVID-19 testing or vaccination requirements are legal, you should reach out to an employment law attorney who can review your workplace's policies and provide a legal opinion. Our Legal Help guide has information on contacting an attorney.

Federal Law

We have not identified a law at the federal level that explicitly discusses COVID-19 testing by employees, but the EEOC has issued guidance to employers in response to the COVID-19 pandemic that addresses testing. The EEOC enforces many federal workplace anti-discrimination laws like the Americans with Disabilities Act (ADA) and the Rehabilitation Act. Their guidance states:

A.8. May employers ask all employees physically entering the workplace if they have been diagnosed with or tested for COVID-19?

Yes. Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19.

The EEOC guidance also allows employers to administer a COVID-19 test to employees entering the workplace as long as the testing meets ADA requirements:

A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?

The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.

Texas Law

Texas Governor Greg Abbott issued Executive Order GA-40, which prohibits any entity in Texas from requiring any individual to get a COVID-19 vaccine if they have an objection. However, the order does not include any restrictions on testing for COVID-19.

We have not been able to local any additional state or local laws that directly prohibit COVID-19 testing for employees.

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