The Equal Employment Opportunity Commission (EEOC) recently updated its guidelines to address employer COVID-19 testing policies.

Since near the beginning of the COVID-19 pandemic, the EEOC had taken the position that mandatory worksite COVID-19 viral testing to screen whether an employee could come to work or stay at work was a "medical examination" that was allowable under the Americans with Disabilities Act (ADA) (i.e., that the screening tests were "job related and consistent with business necessity"). New guidance from the EEOC, effective July 12, 2022, changes the prior clear guidance and makes the landscape murkier for employers. Moving forward, employers will be required to assess whether continued COVID-19 testing for screening purposes is, in fact, "job related and consistent with business necessity" so as to not run afoul of the ADA.

The EEOC lists the following as considerations for employers in making a "business necessity" assessment:

• Level of community transmission
• Vaccination status of employees
• Accuracy and speed of processing different types of COVID-19 viral tests
• The degree to which breakthrough infections are possible for vaccinated employees
• The ease of transmissibility of current COVID-19 variants
• The severity of a potential illness from the current COVID-19 variant
• The types of contact employees may have in the workplace
• The impact to operations if an employee enters the workplace with COVID-19

The EEOC advises that employee screening will meet the "business necessity" test so long as it is consistent with then-current guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and/or state/local public health authorities.

These new guidelines apply only to mandatory workplace COVID-19 testing policies for screening employees' ability to come to work or stay at work. Employers are still permitted to ask on-site employees if they have symptoms associated with, or have tested positive for, COVID-19, and may exclude employees from the workplace on that basis. Employers may also continue to require on-site employees to obtain a "Return-to-Work" certification from a medical professional when seeking to return to work following a COVID-19-related absence.

The EEOC's guidance is fairly vague with respect to what constitutes a sufficient "business necessity," and guidance by the CDC, the FDA, and state/local authorities can be complex to sift through. Employers considering continuing a mandatory workplace COVID-19 screening testing policy (or implementing a new one) should consult with legal counsel beforehand to ensure that policies are ADA- and EEOC-compliant.