The Equal Opportunity Commission (EEOC) updated its “Technical Assistance Questions and Answers” as of July 12, 2022 to reflect new standards for COVID-19 screening in the workplace. The updated Q&A can be found here. The revised guidance is based on the “evolving pandemic circumstances” that the EEOC considers when determining compliance with the ADA. The guidance also distinguishes between viral testing and antibody testing – explicitly barring the use of antibody testing for employees re-entering the workplace.
Can Employers Require COVID-19 Screening?
Yes, but an employer must show that testing is job-related and consistent with business necessity. At the beginning of the COVID-19 pandemic, the EEOC’s assessment was that the ADA standard for conducting medical examinations was met for employers to conduct COVID-19 viral test screening of employees. The updated guidance now requires “individual assessment by employers to determine whether such testing is warranted.”
In order for an employer to mandate a COVID-19 viral test as a screening test for new or continued employment, the employer must now show that the test “is job-related and consistent with business necessity.” Whether or not testing is “consistent with business necessity” will be based on whether it is “consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing.”
The EEOC provides a list of factors that may be considered when determining whether testing is a “business necessity,” including:
“[T]he 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, what 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.”
Employers that intend to mandate testing should monitor evolving CDC guidance.
Continue Reading The EEOC’s Updated Guidance on Employer COVID-19 Safety Requirements