The Pentagon’s has set policies regarding testing of DoD employees being recalled to their normal duty stations from telework or leave status due to the pandemic, holding that the department cannot use certain testing procedures that it may freely use for military personnel.
A general counsel’s office memo responded to questions that arose about the status of civilian employees under two recent “force health protection” directives on procedures for testing uniformed personnel for the Coronavirus. “Neither document provides authority to order testing of DoD civilian employees,” it says.
It cites language in one of those directives stating that civilian employees “may be offered testing . . . if their supervisor has determined that their presence is urgently required in the DoD workplace. Such testing is not mandatory.”
“Civilian employees may be directed to undergo non-intrusive screening measures such as no-contact temperature readings and questions about health-related matters, but they may not be directed to undergo diagnostic medical testing as a general access control measure . . . If DoD civilian employees decline the opportunity to take a test, no adverse personnel action may be taken pursuant to current DoD guidance related to COVID-19,” it adds, although management may employ “such measures as access control” to protect other employees.
In addition, the EEOC has issued a series of policy statements on Rehabilitation Act and Americans with Disabilities Act restrictions on what employers—including federal agencies, since those laws apply in the federal workplace—may do, most recently stating that they may not compel workers to take antibody tests.