At the start of the COVID-19 pandemic, many employers relied heavily on the constantly changing guidance from the Equal Employment Opportunity Commission (EEOC) in its Technical Assistance Questions and Answers relating to the Americans with Disabilities Act (ADA) and other laws. A preeminent concern among employers has been whether they can lawfully test employees for COVID-19 without violating the ADA. Recognizing that a COVID-19 test qualifies as a “medical examination” under the ADA, the EEOC has always required that these tests be job related and consistent with business necessity. In March 2020, the EEOC gave employers wide berth to test employees due to the health emergency posed by the virus. Now, however, the EEOC’s guidance has been updated to reflect changes in what we know about COVID-19 and its spread.

 

Employers enforcing a mandatory screening policy should take note: The EEOC has published new guidance underscoring the long-standing requirement that employers must demonstrate that medical testing, including COVID-19 screenings, is job related and consistent with business necessity. The guidance instructs that testing will meet the “business necessity” standard if it is appropriately guided by relevant factors, which may include:

• The level of community transmission
• The vaccination status of employees
• The accuracy and speed of different types of COVID-19 tests
• The possibility of breakthrough infections for vaccinated employees
• The transmissibility of the current variants
• The possible severity of illness from the current variant
• The types of employee contact in the workplace (e.g., whether employees will be working with medically vulnerable individuals)
• The potential impact on operations if an employee enters the workplace with COVID-19

As the factors themselves suggest, the EEOC advises employers to consult the latest Centers for Disease Control and Prevention (CDC) guidance when making their assessments. Relying on the CDC’s consistent guidance on the issue, the update further reiterates the EEOC’s position that antibody testing does not meet the ADA’s “business necessity” standard, as it cannot reliably show whether an employee has a current infection or any level of viral immunity.

Importantly, the EEOC’s latest guidance should not be construed as a message that screening policies are no longer warranted, especially as new subvariants of the virus continue to drive infections upward. Rather, the agency simply acknowledged that “evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.” Thus, going forward, employers will need to make an individualized assessment based on the factors above and document that decision-making process.