The highlights of the update are below.

• Employers, as a mandatory screening measure, can administer a COVID-19 viral test to determine if an employee can enter or stay in the workplace only if the employer can show that the viral testing is 1) job related and 2) consistent with business necessity.
• As the EEOC previously noted, the viral test is a medical examination under the Americans with Disabilities Act and thus any mandatory medical testing must be “job-related and consistent with business necessity.”
• If an employer believes that testing may be a “business necessity” they should analyze the following facts:
  • 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 current variant and ease of transmission;
  • The severity of illness from the current variant;
  • Contacts employees may have with others in the workplace; and
  • Potential impact on operations if an employee enters the workplace with COVID-19.
• Employers cannot require antibody testing before permitting employees to enter the workplace. Recent CDC guidance explains that antibody testing “may not show whether an employee has a current infection, nor establish whether an employee is immune to infection.”

Practical implications:

• If your company has a COVID-19 policy that it is currently following, pull it out and review whether the policy is currently in compliance with the COVID-19 EEO Guidance. Consider some of the following guidance:
  • Should the Policy be applicable to some members of your workforce and not others based on contacts the employees may have at work?
  • Should the Policy be applicable to certain locations, but not others, based on the level of community transmission in that location?
  • Is the level of vaccinated employees such that a continued policy is necessary?
• If you have a COVID-19 policy that you are not currently following, was the policy revoked at some point in time or declared to no longer be applicable/in force? If not, now may be a good time to either update the policy and start following it or declare that the Policy is no longer applicable. We could likely create a whole blog post about the risks associated with having policies that aren’t enforced, but that’s for another day.