The Equal Employment Opportunity Commission has updated its guidance across several different areas relating to COVID-19 and the workplace, including when employees can be required to undergo COVID-19 testing, reasonable accommodations, and parameters around mandatory vaccination programs.
The EEOC’s prior guidance stated that conducting mandatory worksite COVID-19 testing always met the Americans with Disabilities Act standard that any mandatory medical test be “job-related and consistent with business necessity.”
The new guidance states that, going forward, COVID-19 workplace testing is no longer automatically compliant with this ADA standard. Instead, employers will now need to assess whether testing is job-related and consistent with business necessity, based on current pandemic and individual workplace circumstances.
The EEOC identified several “possible considerations” employers may use when making this assessment:
- “The level of community transmission”
- “What types of contacts employees may have with others in the workplace or elsewhere that they are required to work, such as working with medically vulnerable individuals”
- “The vaccination status of employees”
- “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”
- “The accuracy and speed of processing for different types of COVID-19 viral tests”
- “The potential impact on operations if an employee enters the workplace with COVID-19”
The guidance further states that mandatory COVID-19 testing will meet the “business necessity” standard when it is consistent with current guidance from the Centers for Disease Control and Protection, the Food and Drug Administration, and/or state or local public health authorities – but notes that each of those entities may periodically revise and update its guidance based on new information and changing conditions.
The updates additionally clarify that this analysis only applies to COVID-19 viral testing and not to antibody testing. Antibody testing, otherwise known as serology testing, is a blood test conducted to determine if an individual has COVID-19 antibodies. Since the CDC’s July guidance clarified that antibody testing may not show whether an employee has a current infection nor whether the employee is protected from being re-infected, the EEOC’s updated guidance states that antibody testing would not meet the business necessity standard.
EEOC guidance did not change regarding other COVID-19 screening methods. Employers may still ask all employees who will be physically entering the workplace if they have tested positive for COVID-19 or have symptoms associated with COVID-19 and may exclude individuals from entering the workplace based on their answers to those questions. Further, in guidance that remains unchanged, if an employer wants to ask an individual employee (as opposed to general screening methods applied to all employees) questions regarding symptoms associated with COVID-19 or request the individual undergo a temperature screening or testing, the employer must have a reasonable belief based on objective evidence that the individual may have COVID-19.
The guidance regarding when employers may require personal protective equipment and other infection control practices also was updated. Whereas previous guidance stated employers could require such control measures, the new guidance states that “in most instances” the federal Equal Employment Opportunity laws allow employers to require PPE and other infection control measures, though the guidance does not provide examples of where such requirements may not be permissible.
