On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance on employer-required COVID testing. Throughout the pandemic, the EEOC has maintained that employers could require their employees to be regularly tested for COVID.
Until now, required testing was permitted almost without limit. This is because COVID-19 was considered to be so dangerous and pervasive that it automatically satisfied the Americans with Disabilities Act (ADA), which states employers may only require medical examinations or make medical inquiries where they are “job related and consistent with business necessity.” For the last two and a half years, the mere threat of exposing a workforce to COVID satisfied this requirement.
The EEOC’s updated guidelines recognize that the COVID landscape has changed. Now, employers must consider a number of factors to determine whether testing employees for COVID meets the “business necessity” test, including:
- 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 to 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,
- what types of contacts employees may have with others in the workplace or elsewhere they are required to work (e.g., working with medically vulnerable individuals), and
- the potential impact on operations if an employee enters the workplace with COVID-19.
Using the same rationale, the EEOC has also clarified that antibody tests can no longer be required. “[A]ntibody testing,” the EEOC explains, “may not show whether an employee has a current infection, nor establish that an employee is immune to infection . . . at this time such testing does not meet the ADA’s ‘business necessity’ standard for medical examinations or inquiries for employees.”
As a result of this new guidance, there is no one-size-fits-all approach to COVID testing employees. Employers must now look at the circumstances specific to their workforce, which may vary from not only state to state, but office to office.
If you have any questions about what these new guidelines mean for you, please reach out to Connell Foley’s Labor and Employment group.