"Circumstances" Must Justify COVID Testing, EEOC Says
Author: Michael Cardman, XpertHR Legal Editor
July 18, 2022
In a slight but potentially significant shift, the Equal Employment Opportunity Commission (EEOC) now says that worksite COVID-19 viral screening testing will not always be presumed to comply with the Americans with Disabilities Act (ADA).
The EEOC considers COVID-19 viral tests to be medical examinations under the ADA. As a result, any mandatory medical examinations must be job-related and consistent with business necessity.
When it first issued technical guidance about the coronavirus and equal opportunity laws at the start of the pandemic in 2020, the EEOC said testing employees for the presence of the COVID-19 virus before allowing them to enter the workplace would always meet the "business necessity" standard as long as the testing follows guidance from the Centers for Disease Control and Prevention (CDC).
But in updated guidance, the EEOC now says that, going forward, "employers will need to assess whether current pandemic circumstances and individual workplace circumstances" justify testing.
According to the EEOC, considerations in making the "business necessity" assessment may include the:
- Level of community transmission;
- Vaccination status of employees;
- Accuracy and processing speed 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.
"This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA," the EEOC said.
The EEOC also updated its guidance around return to work, pre-employment screening, the interactive process and more.