LawFlash
July 14, 2022
The U.S. 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 individualized assessment to determine whether testing is legal 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 demonstrate that such inquiries or examinations are job-related and compliant. to the needs of the business. Before July 12, the Equal Employment Opportunity Commission (EEOC) informed that mandatory COVID-19 testing met this requirement under all circumstances, as employees entering the workplace with the COVID-19 virus posed a direct threat to the health of others.
The updated tips clarifies that due to the changing circumstances of the pandemic and the threat posed by the virus, employers will need to conduct an individualized assessment to determine whether mandatory testing is warranted in the future.
Specifically, the new guidelines reiterate that mandatory COVID-19 testing is only acceptable if an employer can demonstrate that it is job-related and consistent with business necessities. The guidelines state that the employer’s use of COVID-19 screens in the workplace will always be job-related and consistent with business necessity when adhering to recommendations from the Centers for Disease Control (CDC), the Food and Drug Administration (FDA) and/or public health authorities.
current CDC tips on Community Levels and COVID-19 Prevention recommends the use of screening or other testing strategies when levels of community transmission are medium or high. Above all, he does not recommends these protocols when community levels are low, but simply recommends that organizations ensure access to testing.
The guidance clarifies that considerations beyond CDC and other public health guidelines may also be relevant in justifying the 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 of the different types of COVID-19 viral tests,
- the extent to which contamination breakthroughs are possible for employees “up to date” with their COVID-19 vaccinations,
- the ease of transmissibility of the current variant,
- the severity of the disease of 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 intended to suggest that testing is no longer warranted. Rather, it is intended to recognize the changing circumstances of the pandemic and reiterate the need for individualized assessment as part of the ADA.
IMPLICATIONS FOR EMPLOYERS
Many employers continue to require regular COVID-19 testing for employees who physically report to a workplace, especially for employees who are unvaccinated or not “up to date” on their COVID-19 vaccinations. 19. This guidance should be a reminder that employers will need to continually reassess the need for such testing in the future and consider whether a testing protocol may be appropriate for some of their workplaces but not others. This is especially true if employers require testing in areas with low community transmission according to CDC measurements.
However, as the guidance notes, there are circumstances in which employers may continue to mandate COVID-19 testing in areas of low transmission. The current variant of COVID-19, BA.5, may provide a particularly compelling reason to continue this practice given its reported contagiousness and propensity to infect people 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 this decision.
The EEOC is expected to continue to roll back some of its earlier guidance on COVID-19 if it perceives a reduction in pandemic risk. Employers should continue to monitor developments in this space and reassess COVID-19 policies in light of any changes.
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