Employers, Here’s New EEOC Pandemic Guidance About COVID-19 Testing
They say two heads are better than one. Thankfully, I have the benefit of multiple excellent brains within the employment group at FisherBroyles, including my law partner Gordon Berger.
Gordon not only informed me that yesterday, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 pandemic guidance, but he sent a summary of the new guidance to me as well.
Lucky me! And lucky you, because I share with my friends.
What Does The New EEOC Guidance Say?
On July 12, the EEOC updated several Questions and Answers (Q&As) in its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance (EEOC Guidance), including a question about administering COVID-19 viral tests in the workplace.
Gordon summarized the EEOC Guidance as follows:
- Employers “need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees.
- While previously, the EEOC Guidance advised that COVID-19 testing for on-site employees was legal across the board, now, employers will have to prove that testing employees is a “business necessity,” which can be based on factors like community transmission, workers’ vaccination status, or certain working conditions.
The EEOC carefully notes that the change in guidance does not mean testing is or is not warranted; rather, employers must engage in an “individualized assessment” as to whether it’s warranted under the Americans With Disabilities Act (ADA).
Sound familiar? It should! That’s because the ADA requires an individualized assessment for conducting medical examinations onsite.
Employers should check guidance from the Centers for Disease Control and Prevention (CDC) and state and local authorities as well.
Employers May Not Rely On Antibody Tests
An antibody test is a medical examination under the ADA. Employers can require employees to undergo a medical exam—as long as it is job-related and consistent with business necessity.
The EEOC Guidance notes:
As of July 2022, CDC guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace. Based on this CDC guidance, at this time such testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
Let’s discuss. What do you think about this update from the EEOC?