The US Equal Employment Opportunity Commission updated its guidance on employer COVID-19 testing programs on July 12. The update reinforces that the evolving circumstances of the COVID-19 pandemic require an individualized assessment to determine whether testing is lawful in a given scenario.

The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries or requiring medical examinations of employees unless the employer can show that such inquiries or exams are job-related and consistent with business necessity. Prior to July 12, the Equal Employment Opportunity Commission (EEOC) advised that mandatory COVID-19 testing met this requirement in all circumstances because employees entering the workplace with the COVID-19 virus posed a direct threat to the health of others.

The updated guidance clarifies that, due to the changing circumstances of the pandemic and the threat the virus poses, employers will need to make an individualized assessment to determine whether mandatory testing is warranted going forward.

Specifically, the new guidance reiterates that mandatory COVID-19 screening is only acceptable if an employer can show that it is job related and consistent with business necessity. The guidance states that employer use of COVID-19 screens at a workplace will always be job-related and consistent with business necessity when adhering to recommendations from the Centers for Disease Control (CDC), Food and Drug Administration (FDA), and/or public health authorities.

Current CDC guidance on COVID-19 community levels and prevention recommends the use of screening testing or other testing strategies when community transmission levels are at the medium or high level. Importantly, it does not recommend those protocols when community levels are low, but merely recommends that organizations ensure access to testing.

The guidance clarifies that considerations beyond CDC and other public health guidance may also be relevant to justify continued use of COVID-19 testing programs. These include:

• the 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 their COVID-19 vaccinations,
• the ease of transmissibility of the current variant,
• the severity of illness from the current variant,
• the types of contact employees may have with others in the workplace, and
• the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC stresses that the change is not meant to suggest that testing is no longer warranted. It instead is meant to acknowledge the evolving circumstances of the pandemic and reiterate the need for individualized assessment under the ADA.

IMPLICATIONS FOR EMPLOYERS

Many employers continue to require regular COVID-19 testing for employees who physically report to a worksite, especially for employees who are not vaccinated or are not “up to date” on their COVID-19 vaccinations. This guidance should serve as a reminder that employers will need to continuously reevaluate the need for that testing going forward and consider whether a testing protocol may be appropriate for some of their worksites but not others. This is especially true if employers are requiring testing in areas where community transmission is low according to CDC metrics.

As the guidance notes, however, there are circumstances where employers can continue to mandate COVID-19 screening in areas of low transmission. The current variant of COVID-19, BA.5, may provide a particularly compelling reason to continue that practice given its reported infectiousness and propensity to infect persons with prior immunity and “up-to-date” vaccination status. However, employers should ensure that they have analyzed the continued need for testing in accordance with the factors cited by the EEOC when making that determination.

It is expected that the EEOC will continue to roll back some of its prior guidance on COVID-19 if it perceives reduced risks from the pandemic. Employers should continue to monitor developments in this space and reevaluate COVID-19 policies in light of any changes.

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