The United States Equal Employment Opportunity Commission (“EEOC”) administers and enforces the laws against workplace discrimination, including the laws governing when medical examinations of employees are permissible under the Americans with Disabilities Act (“ADA”).
The EEOC’s Shifting Position on Mandatory COVID Testing: At the outset of the pandemic, the EEOC determined that employers conducting worksite COVID-19 viral screening testing always met the ADA standard for conducting medical examinations, and therefore were permissible.
However, the EEOC has now revised its “Q&As” on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” – reversing course from testing is always OK to requiring employers to meet a high standard before being allowed to require COVID testing. Specifically, the EEOC Guidance now states that going forward an employer can only administer a mandatory COVID-19 screening test to employees if the employer can show that it is job-related and consistent with business necessity.
The EEOC explained that this change “is not meant to suggest that such testing is or is not warranted,” but rather is intended to take into account the “evolving pandemic circumstances.” To that effect, an employer will meet the “business necessity” standard if the testing 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.
- Public health authorities are currently in agreement that those with COVID-19 symptoms or close contact to someone with COVID-19 should be tested.
- In California, employees who contract COVID-19 can only return to work before the tenth day of isolation if they receive a negative test.
- As for testing of asymptomatic employees as part of a COVID-19 screening procedure, CDC guidance says that such testing should be considered in certain workplaces, such as large workplaces, those with increased risk of COVID-19 transmission (e.g., little physical distancing or communities with moderate to high transmission), and workplaces where infection will have a particularly negative impact (e.g., remote settings with less access to healthcare, critical infrastructure, or a high proportion of employees with increased risk of severe illness).
The EEOC also offered these examples of the “other factors” employers may consider in determining whether their testing policies are consistent with business necessity:
- community transmission levels,
- the types of contacts between employees and others in the workplace,
- the vaccination status of employees and the degree to which breakthrough infections are possible,
- how contagious and how potentially severe the current variant(s) is, and
- the potential impact on operations if an employee enters the workplace with COVID-19.
What this means for you: Employers should evaluate (and continue to periodically evaluate) their COVID-19 testing screening policies to ensure that that they will stand up to this very high “business necessity” standard. This means at a minimum keeping up with CDC and local health guidance, and deliberately examining the other factors suggested by the EEOC to determine whether testing can be legally justified.
A few other notable changes were made to the Guidance. Employers cannot require an antibody test from employees to return to work, but they can require a doctor’s note explaining that the employee poses no risk of transmission and is able to perform the job duties.
The updated guidance also addresses new-hire guidelines. Employers are permitted to test applicants for COVID-19 as long as they uniformly do this for all applicants. However, a job offer can only be rescinded after a positive COVID-19 test if it’s absolutely necessary that the employee start right away and in-person.