On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) made updates to its COVID-19 FAQs. They also issued updated guidance regarding permissible testing, workplace screening, and return to work policies for employers.
Mandatory Viral Testing
Previously the EEOC was of the position that, due to the nature of the pandemic, workplace COVID-19 testing was considered a permitted “medical examination” under the Americans with Disabilities Act (ADA). Now, the EEOC no longer recognizes this presumption.
According to the July 12 update, employers may only continue workplace COVID-19 testing as a mandatory screening measure if the employer can show that doing so is a “business necessity” related to the job. What qualifies as a “business necessity” is defined by the fluctuating guidelines of the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and state public health agencies. When making such a determination employers should consider:
- The level of transmission and the number of vaccinated employees
- The likelihood of transmission between variants.
- The severity of the variant.
- The accuracy of different COVID-19 testing kits.
- The type of employee contact needed for the job performance.
- The potential hazards of infected employees entering the workplace.
Antibody Testing
Furthermore, the EEOC now prohibits employers from requiring employees to have anti-body testing performed before returning to work. This is because antibody testing does not clearly differentiate whether an employee is currently infected or is immune to infection.
Applicant Screening
Employers are only advised to use COVID-19 testing in the post-offer screening process if the employer does so for all new employees in similar positions. Under this new rule, an employer may only withdraw a job offer if (a) the position requires an immediate start; (b) the CDC recommends the person should not be near others; and (c) the job requires employees to be in close contact. Employers must explore reasonable alternatives, like adjusting start dates or remote work, to accommodate an infected employee before rescinding a job offer.
Return to Work Policies
COVID-19 is not always considered a disability under the ADA. In instances where an employee’s COVID-19 status escalates to the level of personal disability, employers may require an employee to provide a doctor’s note approving their safe return to work. As always, the EEOC encourages employers to keep up with CDC guidance when establishing workplace COVID-19 policies. The EEOC’s revised guidance must still be implemented equitably and does not excuse employer conduct that is unlawfully discriminatory.
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