Updated EEOC Guidance: Mandatory COVID-19 Screening Tests Must be “Job-Related and Consistent with Business Necessity”

On July 12, 2022, the EEOC updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” Technical Guidance.  On the whole, the EEOC makes relatively minor adjustments.  More notable, however, is its shift in position on when COVID-19 viral testing in the workplace is appropriate. 

How Did We Get Here?

As a reminder, a COVID-19 viral test, which tests for the presence of SARS-CoV-2 (the virus that causes COVID-19), is a “medical examination” within the meaning of the ADA.  When the pandemic started, the EEOC stated that the ADA standard for conducting medical examinations—that the requirement must be job-related and consistent with business necessity—would always be met for employers who conduct worksite COVID-19 viral testing due to the severity of the pandemic. 

Now that the pandemic is (hopefully) waning, or (at the very least) changing, the EEOC now expects employers to affirmatively assess whether current pandemic circumstances and individual workplace circumstances justify COVID-19 viral testing of employees to prevent workplace transmission.  In other words, due to changes in the pandemic, COVID tests are no longer automatically appropriate, but instead must be “job-related and consistent with business necessity.” 

What Does This Mean?

Before you panic, the EEOC comments, “This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”  Whether mandatory testing of employees meets the business necessity standard therefore must be determined based on relevant facts, such as:

• 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.

The EEOC further states that employer use of a COVID-19 viral test to screen employees who are or will be in the workplace “will meet” the business necessity standard when it is consistent with guidance from Centers for Disease Control and Prevention (“CDC”), Food and Drug Administration (“FDA”), and/or state/local public health authorities that is current at the time of testing. 

Does This Affect Other Screening Procedures?

Notably, the EEOC’s adjusted position focuses on requiring medical examinations (such as the COVID-19 viral test) of employees generally.  It does not prevent an employer from conducting non-medical screening, such as asking whether individuals physically entering the workplace have COVID-19, whether individuals have symptoms associated with COVID-19, or whether they have been tested for COVID-19 recently.  Indeed, the EEOC maintains that employers may still exclude individuals who answer “yes” to any of those inquiries because their presence in the workplace would pose a “direct threat” to the health and safety of others.

Additionally, keep in mind that if an employer wants to ask a particular employee (as opposed to employees generally) to take a COVID-19 viral test, the employer must have a reasonable belief based on objective evidence (such as observable symptoms) that the individual might have COVID-19. 

What Else Did the EEOC Update?

The EEOC also made other updates to its Technical Guidance, including but not limited to the following:

• Antibody Testing: The EEOC still prohibits employers from requiring antibody testing of employees, as the CDC’s guidance continues to be that such tests may not determine whether an individual is currently infected or if the individual is immune.
• Return to Work Notes: The EEOC confirms that an employer can require an employee who returns to the workplace after being out for COVID-19 to provide a return to work note from a healthcare provider, but also notes that the employer may also follow CDC guidance to determine when it is safe to allow an employee to return without such a note. 
• Delays in the Interactive Process: The EEOC acknowledges that some of the issues initially created by the pandemic that delayed engaging in the interactive process and/or providing reasonable accommodation may no longer exist.  But, as the pandemic continues to evolve and new issues arise, it is possible that an employer may face new challenges that interfere with responding promptly to a request for accommodation.  With that in mind, to the extent that evolving circumstances created by the pandemic cause a justifiable delay in the interactive process–thereby delaying a decision on a request–the EEOC encourages employers and employees to use interim solutions to enable employees to keep working as much as possible. 

What’s Next?

Ultimately, the changes to the Technical Guidance are not earth-shattering, as most employers will still be able to argue business necessity for COVID-19 viral testing in most situations.  However, because the circumstances and factors relevant to whether business necessity exists may change over time, employers who require COVID-19 viral testing should review the factors and circumstances frequently to ensure continued compliance with the law.  As the pandemic changes, so may the employer’s business necessity.