On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance to now require employers "to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing" for employees. The agency published this revised guidance in light of the requirement under the Americans with Disabilities Act (ADA), which the EEOC enforces, prohibiting employers from mandating certain medical examinations or inquiries of employees.
Since the outset of the pandemic, the EEOC has been consistent in stating that COVID-19 testing for on-site employees was permissible in all workplaces with no exception. Because a COVID-19 viral test is a "medical examination" with the
meaning of the ADA, the EEOC now states that an employer requiring such tests must show that the testing is "job-related and consistent with business necessity." The Commission indicated that such testing will meet the "business necessity" standard "when it is consistent with the current guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or from state or local public health authorities." The EEOC’s updated guidance cautions that public health authorities periodically update and revise their recommendations, so employers relying on such guidance must keep up with new information and changing conditions.
Mandatory testing under this
revised guidance must meet the "business necessity" standard based on relevant facts. The EEOC has indicated that possible consideration in making the "business necessity" assessment may include the following:
- Level of community transmission,
- Vaccination status of employees,
- Accuracy and speed of processing for different types of COVID-19 viral tests,
- Degree to which breakthrough infections are possible for employees who are "up to date" on vaccinations,
- Ease of transmissibility of the current variant(s),
- Possible severity of illness from the current variant,
- 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
- Potential impact on operations if an employee enters the workplace with COVID-19.
Again, after listing the factors, the EEOC referenced that employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for employees.
The updated guidance by the EEOC issued on July 12 also states clearly that an employer may not require antibody testing before permitting employees to re-enter the workplace. Antibody testing may not show whether an employee has a current infection or establish that an employee is immune to infection; as a result, such testing is not "job-related and consistent with business necessity" and
should not be used to determine whether an employee may enter the workplace.
While many employers have never required COVID-19 screening or testing, those who have and continue such practices may well face challenges as the EEOC has opined that screening/testing must now be limited. However, it would seem that given the current prevalence of highly contagious variants throughout the country and the fact that testing generally has occurred in workplaces where employees interact with those vulnerable to severe consequences upon infection (i.e., the elderly, those medically-compromised, the unvaccinated, etc.), that many of those employers still requiring testing likely are doing so for reasons
that are job-related and consistent with business necessity. Unfortunately, now such employers may well face challenges from employees subject to testing who may claim violation of their rights under the ADA and similar state or local laws.
While this Alert is for informational purposes only, please contact us if you have any specific questions. Calfee's Labor and Employment attorneys can provide counsel regarding whether any COVID-19 screening or testing you are currently conducting satisfies the standard for lawfulness provided under the EEOC’s newly-issued, updated guidance.