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.

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