The Equal Employment Opportunity Commission (EEOC) has updated its guidance, entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, concluding that U.S. employers are beyond the emergency stage of the pandemic, when mandatory testing for COVID-19 was automatically deemed to be “job-related” and “consistent with business necessity.” As of July 12, 2022, employers need to treat COVID-19 testing like other medical examinations, under the standards of the Americans with Disabilities Act (ADA). The updated guidance makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify testing of employees to prevent workplace transmission of COVID-19.
The updated guidance also affirms that other types of less-intrusive screening for COVID-19 remains permissible, such as asking employees who are physically entering the workplace if they have COVID-19 or associated symptoms and whether they have been tested for COVID-19. Employers also can ask employees who work on-site and report feeling ill or who call in sick questions about their symptoms to the extent those symptoms relate to screening for COVID-19.
Next Steps for Employers
The updated guidance confirms that COVID-19 viral tests must be treated as medical examinations under the ADA. As a result, employers will need to conduct an individualized assessment to determine whether testing for COVID-19 is warranted and if such testing meets the two prongs of being “job-related” and “consistent with business necessity.” The analysis should consider the:
- Level of community transmission;
- Vaccination status of employees;
- Accuracy and processing speed for different types of COVID-19 viral tests;
- Degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
- Ease of transmissibility of the current variant(s);
- Possible severity of illness from the current variant;
- Types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals);
- Potential impact on operations if an employee enters the workplace with COVID-19; and
- The degree to which the screening measures are consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities.
Employers should consult with their legal counsel regarding screening measures and meeting their obligations under the ADA and/or state and local laws.
In addition to the updated guidance on COVID-19 testing, the Agency also included updates on other topics such as requiring doctors’ notes after a COVID-19 diagnosis and rescinding or postponing a job offer based on COVID-19 concerns for high-risk individuals. It is recommended that employers review the updated guidance in its entirety, which can be identified by the label of “(Updated 7/12/22).”
Employers are also encouraged to consult with their legal counsel regarding screening measures and meeting their obligations under the ADA and/or state and local laws.