As infections during the worldwide COVID pandemic have waxed and waned, and as vaccinations and new treatments for COVID infection have been introduced, employers have begun to see a substantial increase in the number of employees that have returned to work. That, in turn, has caused many employers to re-evaluate their COVID testing protocols to determine who may return to the office and when.
Earlier in the pandemic, the EEOC permitted such testing of on-site employees without any need for an employer to show a particular need for testing or any obvious workplace threat. Employers were free to require employees to test as frequently as they wished in an effort to create a workplace that was free from COVID infection and could do so without running afoul of the Americans With Disabilities Act’s restrictions upon medical examinations of employees. At the time, the EEOC permitted employers greater deference given the uncertainties associated with the ongoing pandemic.
But on July 11, 2022, the EEOC issued new guidance that restricted employers’ ability to test at will. In revised guidance issued that day, the EEOC revoked the prior guidance, indicating that in order to test employees at this point in the pandemic, employers must show that the need for a negative COVID test is “job-related and consistent with business necessity”—the same standard that is applicable for other medical testing of employees under the ADA.
The EEOC goes on in the guidance to explain that the “business necessity” standard will be met when it is consistent with CDC, FDA, or state/local public health guidance current at the time of testing. In addition, an employer can make an individual determination that testing is a “business necessity” based on the relevant facts and circumstances that exist at the time the testing protocol is executed. Those considerations include:
- the level of community transmission,
- the vaccination status of employees,
- the accuracy and speed of processing the tests,
- the degree to which breakthrough infections are possible for vaccinated employees,
- the ease of transmissibility of the current variants,
- 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 in (e.g., working with medically vulnerable individuals), and
- the potential impact on operations if an employee enters the workplace with COVID.
The EEOC revised other aspects of its guidance as well. It reversed its prior position regarding whether an employer may require antibody testing before permitting employees to re-enter the workplace, citing new CDC guidance that explained that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection and, as such, does not meet the ADA’s “business necessity” exception for medical examinations. Rather, viral screening tests must be used to determine infection status under the circumstances described above.
If you have any questions about the EEOC’s recent guidance on COVID-19 testing in the workplace, please contact the author of this article or any member of Dykema’s Labor and Employment team.