On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance for the workplace, most notably, its guidance regarding COVID-19 testing of employees. Prior to last week, the EEOC took the position that mandatory COVID-19 testing would always be “job related and consistent with business necessity” – a requirement for permissible medical examinations under the Americans with Disabilities Act (ADA). Given the evolving nature of the pandemic, the EEOC has changed course and has determined that employers now must make an individualized assessment as to whether current pandemic and workplace circumstances justify mandatory testing of employees to prevent workplace transmission of COVID-19. In other words, employers can no longer simply assume that mandatory COVID-19 viral testing of employees is lawful under the ADA.
The new EEOC guidance further clarifies that employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the ADA’s “business necessity” standard when such action is consistent with the guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), or state/local public health authorities current at the time of testing. This means that employers who test employees for COVID-19 need to stay up to date on any such applicable guidance. In addition, to determine if mandatory testing meets the ADA’s “business necessity” standard, says the EEOC, employers also should consider the following factors:
- 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 variants,
- the possible severity of illness from the current variant,
- the type of contacts employees may have with others in the workplace (or anywhere else they are required to work),
- the potential impact on operations if an employee enters the workplace with COVID-19.
Employers who require employees to undergo mandatory COVID-19 viral testing should take this opportunity to reevaluate their testing policies and practices in light of the new guidance to make sure the testing is justified. While the EEOC states that the change to the guidance “is not meant to suggest that such testing is or is not warranted,” the agency certainly makes clear that employers should now carefully assess whether such testing is warranted and consistent with the requirements of the ADA.