On July 12, 2022, the EEOC again revised its technical assistance questions and answers related to the COVID-19 pandemic and the application of the Americans with Disabilities Act (ADA) and other federal equal employment opportunity laws. In addition, the EEOC updated its publication for employees, Federal Laws Protect You Against Employment Discrimination During the COVID-19 Pandemic. Employers across all industries will find relevant material in the new updates. Notably, the technical assistance revisions make clear that employers now “will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening” of employees to prevent workplace transmission of COVID-19. The new guidance signals a changing landscape as COVID-19 trends develop.
The EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was always met for employers to conduct worksite COVID-19 viral screening testing. Now, the guidance offers possible considerations in making the “business necessity” assessment, including: the level of community transmission; the vaccination status of employees; the ease of transmissibility of the current variant(s); and the types of contacts employees may have with others in the workplace or elsewhere that they are required to work.
In addition, with respect to antibody testing, the guidance makes clear that requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. This is because, under CDC guidance, antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection, and therefore the test does not meet the ADA’s “business necessity” standard.
The updated guidance also addresses testing of applicants for COVID-19. Employers may conduct such testing, provided that it is done pursuant to a uniform testing policy. According to the guidance, job offers may be rescinded after a positive COVID-19 test only if it is absolutely necessary that the prospective employee start immediately and in-person.
Ballard Spahr’s Labor & Employment Group has assisted employers across the nation interpret and apply the EEOC’s technical guidance, and is prepared to help employers develop vaccination and testing programs, address employee requests or concerns involving exemptions, accommodations and address other issues related to the COVID-19 virus.