New EEOC Guidance Issued on COVID-19 Testing in the Workplace

On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 Q&As (“Guidance”), providing new technical assistance concerning the permissibility of COVID-19 testing in the workplace. Here is a summary of certain key takeaways from the updated EEOC Guidance.

Most notably, the EEOC has dramatically changed its position regarding COVID-19 viral testing for on-site employees.  At the outset of the pandemic, the EEOC announced that the Americans with Disabilities Act (“ADA”) standard for conducting medical examinations was met by the circumstances of the global pandemic, and that employers who wished to conduct worksite COVID-19 viral screening testing at that time did not need to demonstrate the ADA standards of job relatedness or consistency with business necessity.  Today, as we enter a new phase of the pandemic, the EEOC has now issued Guidance stating that an employer can only implement mandatory COVID-19 viral testing if the employer can show that the testing is “job-related and consistent with business necessity”. The EEOC’s Guidance further provides that the “business necessity” standard is met “when 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.”

In conjunction with the latest guidance from the CDC and other relevant sources, an employer should consider the following when assessing whether a COVID-19 viral testing protocol meets the “business necessity” standard:

·         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 through 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 have with each other in the workplace or wherever they are required to work; and

·         the potential impact on operations if an employee enters the workplace with COVID-19.

The new EEOC Guidance also explains that under the ADA, an employer may not require antibody testing as a condition of re-entering the workplace. July 2022 CDC guidance states that antibody testing may not show whether an individual has a current infection, nor does it establish that an employee is immune to infection, and therefore it does not meet the ADA’s “business necessity” standard for medical examinations or employee inquiries.

Employers may continue to ask employees who will be physically entering the workplace if they have COVID-19 or related symptoms, as well as whether or not they have tested for COVID-19. An employer can exclude from the workplace those with COVID-19 or related symptoms, because their presence poses a direct threat to the health and safety of others. In addition, “under the circumstances existing currently,” an employer may also bar an employee from being physically present in the office if the employee refuses to answer screening questions about COVID-19 or take ADA-permissible measures, such as temperature reading. 

Additional Q&As were updated by the EEOC Guidance to reflect the fact that although CDC guidance is evolving, COVID-19 is still a significant factor in the workplace.  To read the EEOC Guidance click here and search “7/12/22” to navigate to the recent updates.