EEOC Updates its COVID-19 Related Guidance Thumbnail

EEOC Updates its COVID-19 Related Guidance

On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its pandemic related guidance and Frequently Asked Questions page. The EEOC’s update addresses testing procedures, symptoms screenings, and the accommodation process under the Americans with Disabilities Act (“ADA”), among other things.

Two interesting changes distinguish what tests an employer can mandate when testing employees returning to work for COVID-19. The EEOC opines that an employer, as a mandatory screening measure, can administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) if the employer can show it is job-related and consistent with business necessity.

The EEOC further opines that possible considerations in making the “business necessity” assessment may include 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 that 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. Said differently, the EEOC recognizes that viral testing of employees might be appropriate if it is consistent with a “business necessity” as described above.

However, in the same update the EEOC opines that an employer cannot require COVID-19 antibody testing before permitting employees to re-enter the workplace. The EEOC reasons that such tests are not job-related and consistent with business necessity as they do not show whether an employee has a current infection, and do not establish that an employee is immune to infection. Therefore, the EEOC reasons that requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

We can reasonably expect that the EEOC will continue to update its pandemic related guidance and Frequently Asked Questions page. Employers should continue to periodically check that page for updated guidance especially as it relates to accommodations or medical inquires under the ADA.

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