Greetings: I recall a previous post on the OAMA list serve. I believe the question posed was whether municipal employees could be subjected to mandatory COVID-19 testing? If not, then that is my question. Any thoughts? Thank you.

In my opinion the City can only require testing if the employee poses a "direct threat" and gives consent. As a governmental entity I think you have to be careful who the city subjects to medical tests as a prerequisite to working. If the city believes that the employee is a "direct threat" then I think the supervisor should ask the employee to go get their own test or self-quarantine for 14 days. If there is no reason to believe that the employee is a "direct threat", i.e. in direct contact with a COVID patient and/or showing symptoms then I do not think you can require them to test before coming to work. The EEOC has some more info on this as well: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws A.6. May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace? (4/23/20) 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 steps to determine if employees entering the workplace have COVID-19<https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#A.2> because an individual with the virus will pose a direct threat<https://www.eeoc.gov/transcript-march-27-2020-outreach-webinar#q1> to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus. Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable. For example, employers may review guidance<https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-diagnostic-testing-sars-cov-2> from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC<https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html> or other public health authorities, and check for updates. Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test. Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later. Based on guidance from medical and public health authorities, employers should still require - to the greatest extent possible - that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19. 29 C.F.R. § 1630.2(r) (r) Direct Threat means 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 determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm. OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq Suzanne D. Paulson General Counsel spaulson@omag.org<mailto:spaulson@omag.org> [OMAG-Logo] 3650 S. Boulevard Edmond, OK 73013 Phone: 405.657.1444 Fax: 405.657.1401 OMAG Web Site<http://www.omag.org/> Follow us on: [https://www.omag.org/portals/0/facebook.png]<https://www.facebook.com/pages/Oklahoma-Municipal-Assurance-Group/217733311740931?ref=stream> [https://www.omag.org/portals/0/twitter.png] <https://twitter.com/omag1977> [https://www.omag.org/portals/0/linkedin.png] <http://www.linkedin.com/company/oklahoma-municipal-assurance-group> From: Michael Beason <mbeason@altusok.gov> Sent: Monday, July 27, 2020 11:29 AM To: Suzanne Paulson <spaulson@omag.org>; oama@lists.imla.org Subject: Mandatory Testing of City Employees for COVID-19 Greetings: I recall a previous post on the OAMA list serve. I believe the question posed was whether municipal employees could be subjected to mandatory COVID-19 testing? If not, then that is my question. Any thoughts? Thank you.