Can I require an employee who previously tested positive for COVID-19 to submit a negative COVID-19 test result before returning to work?

At the moment, there’s no guidance that allows employers to require employees to submit a negative COVID-19 test result, as a condition of returning to work.

The California Department of Public Health (CDPH) released an August 24, 2020 memo stating that requiring a negative COVID-19 test prior to returning to work or school after a diagnosis is not recommended.

In a frequently asked question and answer from April 23, 2020, the Equal Employment Opportunity Commission (EEOC) stated that an employer may require a doctor’s note certifying fitness for duty from an employee.

The EEOC’s rationale for its position was that such an inquiry is allowed under the federal Americans with Disabilities Act (ADA) because it would either not be a disability-related inquiry, or, if the pandemic were truly severe, such certification would be justified under the ADA standards for disability-related inquiries of employees.

However, as the health care system is currently burdened, the EEOC notes that employers may have to be flexible about the types of notes, such as a form or email.

Read more EEOC COVID-19 and California Department of Fair Employment and Housing (DFEH) COVID-19 information.