On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers regarding COVID-19 (Guidance) to state that under the Americans with Disabilities Act (ADA) an employer may mandate COVID-19 medical testing of employees and applicants as a condition to enter the workplace only if it is “job-related and consistent with business necessity.” This is a change from the EEOC’s prior position that such testing was presumptively considered job-related and consistent with business necessity because of the circumstances of the pandemic. In determining whether the “business necessity” standard for testing employees is met, the EEOC states that employers should consider the following factors:
- Level of COVID-19 transmission in the community;
- Vaccination status of employees;
- Accuracy and speed of processing 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.
The Guidance directs that, in making the above assessments, employers should check the latest Centers for Disease Control and Prevention (CDC) guidanceopens in a new window (and any other relevant sources) to determine whether screening testing is appropriate for employees.
The Guidance also specifically prohibits employers from requiring employees to undergo a COVID-19 antibody test, as opposed to an antigen test, before re-entering the workplace because an antibody test does not meet the “business necessity” test since the results do not show whether an employee has a current infection, nor establish that an employee is immune to infection.
Despite the EEOC’s about-face on employee screening, its practical effect may be limited. According to the CDC, COVID-19 transmission levels remain high virtually throughout the United States, the current dominant variant is the most transmissible yet, the current available vaccines provide limited protection from the current circulating variant, and mounting evidence shows that immunity levels from vaccination drop significantly after several months. All of which arguably support mandatory screening. Nonetheless, employers that desire to mandate COVID-19 screening should review their testing policies and protocols and revise them as necessary to comply with the Guidance.