COVID-19 Vaccination, Testing and Face Covering Policy
Author: Kim Freeman, Freeman Legal Consulting, LLC
When to Use
An employer who does not wish to implement a COVID-19 vaccination mandate in their organization may use this policy to require employees to undergo regular COVID-19 testing (e.g., weekly testing) and wear a face covering at the workplace instead of being vaccinated against COVID-19. Note that a state or particular industry may mandate COVID-19 vaccinations and/or the wearing of face coverings for certain categories of employees and workplace settings.
The Americans with Disabilities Act (ADA) permits employers to administer COVID-19 viral screening tests to prevent workplace transmission of COVID-19. However, the Equal Employment Opportunity Commission (EEOC) states that employers must make an individualized assessment as to whether current pandemic circumstances and individual workplace circumstances justify such screening testing. The test must be job-related and consistent with business necessity. A COVID-19 viral test to screen employees meets the "business necessity" standard when it is consistent with current guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA) and/or state or local public health authorities. Possible considerations in making the "business necessity" assessment include employees' vaccination status, the level of community transmission and more.