On July 12, 2022, the EEOC updated its technical assistance webpage titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” in a way that scales back an employer’s ability to conduct COVID-19 viral testing.
As seasoned managers and HR professionals know, the federal Americans with Disabilities Act generally provides that an employer can only conduct medical testing if such testing is job-related and consistent with business necessity. Because of the global scope and severity of the COVID-19 pandemic, the EEOC issued technical guidance early in the pandemic stating that the standard for conducting COVID-19-related workplace viral testing was always met for employers. To protect their workforces, many employers promptly adopted enhanced safety measures – including, in some cases, viral testing as a screening measure. With the new guidance, the EEOC is partially returning to its prior standard – COVID-19 workplace viral testing may now only be conducted if job-related and consistent with business necessity.
The EEOC’s revised guidance identifies several factors for an employer to consider when determining whether viral testing is job-related and consistent with business necessity:
- The level of community transmission;
- The vaccination status of employees;
- The accuracy and speed of processing for different types of COVID-19 viral tests;
- The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
- The ease of transmissibility of the current variant(s);
- The possible severity of illness from the current variant;
- The types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and
- The potential impact on operations if an employee enters the workplace with COVID-19.
In making these assessments, the EEOC encourages employers to check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees. In particular, employers in the healthcare sector may be subject to regulatory requirements that would impose greater COVID-19 mitigation requirements than are required for employers in general.
The revised EEOC guidance specifically states that an employer may not require an antibody test before permitting an employee to re-enter the workplace.
Employers should note that the revised EEOC guidance currently continues to allow employers to ask employees entering the workplace if they currently have COVID-19 or symptoms of COVID-19, and ask if employees have been tested for COVID-19. The current guidance also continues to allow employers to take the temperature of employees entering the workplace. Although the future trajectory of COVID-19 is uncertain, if the impact of the virus continues to recede, it is possible that the EEOC may further revise its enforcement guidance to limit an employer’s ability to take these steps as well.
The full text of the revised EEOC guidance is available online at the following webpage: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
Our office will continue to monitor developments related COVID-19, and will provide updated information and guidance as it becomes available. If you have any questions about the contents of this Client Alert, or workplace safety issues in general, please call our office. Thank you.
This Client Alert provides a general overview of new legal developments. It is not intended to provide legal advice. If you have questions or would like more information about how these developments may affect your business, please contact us at (570) 341-8800.