Employers may no longer require Covid-19 testing for on-site employees across the board. The Equal Employment Opportunity Commission (EEOC) announced on July 12, 2022, that “going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.”
This means that an employer who wishes to administer a Covid-19 test as a mandatory screening measure must now “show it is job-related and consistent with business necessity.” The EEOC explained that testing employees who are or who will be in the workplace will satisfy the “business necessity” requirement “when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing.” However, the EEOC warns that the CDC and other public health authorities make periodic changes to their recommendations, which adds another layer of uncertainty for employers.
The updated guidance makes clear that whether screening testing of employees meets the business necessity standard is a fact specific inquiry. Possible considerations for determining whether the standard is satisfied 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 vaccinations
- The ease of transmissibility of the current variant(s)
- The possible severity of illness from the current variant
- What types of contacts employees may have with others in the workplace or other locations where they are required to work (e.g., working with medically vulnerable individuals)
- The potential impact on operations if an employee enters the workplace with COVID-19
Another change to the technical assistance guidance is that, as of July 2022, employers are no longer permitted to require an antibody test before an employee may re-enter the workplace. This update comes on the heels of new CDC guidance explaining that antibody testing may not show current infection or immunity and, therefore, “should not be used to determine whether an employee may enter the workplace.” Because of this, antibody testing does not satisfy the ADA’s “business necessity” standard.
However, employers are still permitted to screen job applicants for symptoms of Covid after making a conditional job offer, provided they do so for all entering employees in the same type of job. But if an employer screens everyone – applicants, employees, visitors, etc. – for Covid before permitting entry, then the employer may also require the applicant to be screened in the same manner as everyone else even before extending an offer. As far as rescinding offers, an employer may only do so on account of a positive Covid test if it is absolutely necessary that the prospective employee be available to start immediately and in person.
The July 12th update is the first time the EEOC has revised its technical guidance since May 2021. The EEOC explained that the July revisions do not indicate that testing is or is not warranted, but rather “acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted and consistent with the requirements of the ADA.”
Despite this proclamation, the EEOC’s imposition of heightened requirements upon employers in the context of Covid screening can certainly be interpreted as the agency at the very least questioning the necessity of testing in the workplace. And it cannot be ignored that the timing of this update is unusual, as the BA.5 variant is presently sweeping the nation.
Contact our employment law team for help determining whether screening measures comply with the EEOC’s new guidance, as well as other federal and state authorities.
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