Since the early months of the COVID-19 pandemic in the United States, the Equal Employment Opportunity Commission (EEOC) has issued guidance in the form of a series of questions and answers under the heading “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and the Other EEO Laws” (the Guidance).
Previously, according to the Guidance, employers were permitted to require COVID-19 viral tests of employees as a condition to enter the workplace. Further analysis of the legality of such testing on a case-by-case basis was not necessary because the circumstances of the pandemic always met the standard required for employee medical testing under the Americans with Disabilities Act (ADA): that the testing be “job-related and consistent with business necessity.”
On July 12, 2022, the EEOC updated the Guidance and revised its position on employee testing. Moving forward, employers can impose mandatory COVID-19 testing as an employee screening measure only if the testing requirement meets the ADA’s “business necessity” standard. The EEOC explained that “employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.”
The Guidance identifies factors an employer may consider is making this assessment, 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 that they are required to work and
- the potential impact on operations if an employee enters the workplace with COVID-19.
Moreover, the Guidance reiterates that an employer may not require that an employee submit to COVID-19 antibody testing before re-entering the workplace. Based on CDC guidance regarding antibody testing, the EEOC has concluded that such testing does not meet the “business necessity” standard.
Finally, the Guidance provides that employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, so long as they require all entering employees in the same type of job to submit to the same screening process. Employers may also rescind a job offer from an individual who tests positive for COVID-19 before starting work, but only if (1) the job requires an immediate start date, (2) CDC guidance recommends the individual not be in proximity to others, and (3) the job requires such proximity to others.
As a practical matter, the Guidance may have limited impact at the present time, given the CDC’s recognition that the level of COVID-19 transmission is at high or substantial rates in virtually the entire country, the latest variant is more transmissible than previous variants, and the Department of Health and Human Services recently extended the COVID-19 public health emergency designation. Should circumstances change, however, employers cannot assume that continued testing will be permissible as a “business necessity” without a review of the various factors identified by the EEOC in the Guidance.
Additionally, although OSHA withdrew its COVID-19 Healthcare Emergency Temporary Standard (ETS) in December 2021 and its November 2021 ETS requiring vaccination or regular testing remains stayed pending resolution of pending legal challenges, the reinstatement or reissuance of these OSHA standards could complicate the “business necessity” analysis required under the EEOC’s revised Guidance. Any testing requirements must reconcile the required “business necessity” standard with any applicable OSHA standards. For example, should the “vaccinate or test” ETS be reinstated (in its current or a revised form), employee testing policies can comply with the ETS and the revised Guidance by recognizing employee vaccination status (one of the factors identified by the EEOC) as part of the analysis undergirding the policy.
Employers are encouraged to review their COVID-19 testing policies to ensure compliance with the revised Guidance. In addition, employers are urged to continue to monitor evolving public health guidelines and be prepared to undertake a “business necessity” analysis if they intend to require COVID-19 testing for employees.
If you have any questions regarding this development or other COVID-19-related requirements, please contact the authors, your DLA Piper relationship attorney or the DLA Piper Employment group at CoronavirusEmployment@dlapiper.com.