New EEOC guidance limits employers’ ability to test employees for COVID-19

New guidance from the Equal Employment Opportunity Commission may limit an employer’s ability to test employees for COVID-19 going forward. This is a particularly significant development as COVID-19 transmission rates surge nationwide. On July 12, 2022, the EEOC updated a number of its Technical Assistance Questions and Answers, including those addressing reasonable accommodation, personal protective equipment and vaccinations. But what seems to be getting special attention is the EEOC’s new position regarding an employer’s ability to administer COVID-19 tests in the workplace under the Americans with Disabilities Act.

The EEOC addressed whether the ADA permits employers to administer a viral test (to detect the presence of COVID-19) when evaluating an employee’s presence in the workplace. Recall that the EEOC’s position at the outset of the pandemic was that the ADA standard for conducting medical examinations was always met for employers to conduct worksite COVID-19 viral testing. Today, the EEOC’s position is slightly different.

According to the EEOC, employers may still administer COVID-19 viral tests in the workplace, but only if the employer can show it is job-related and consistent with business necessity. Employers no longer have an absolute right to administer COVID-19 viral tests in the workplace. So, how does an employer establish business necessity?

Per the EEOC, employers use of viral testing will meet the business necessity standard when it is consistent with current guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration or state/local public health authorities. According to the EEOC, possible considerations in making the business necessity assessment may 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 elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and
• the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC also addressed antibody (serology) tests, which are used to determine prior infections. Unlike viral testing, the process for determining whether antibody testing is permissible in the workplace is much simpler. They aren’t.

According to the CDC, antibody testing may not show whether an employee has a current infection or has immunity from a prior infection or vaccination. Given these deficiencies, the EEOC has taken the position that antibody testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

The EEOC’s updated business necessity assessment for viral testing introduces a new process for employers to follow. Those wanting to commence or continue viral testing of employees in the workplace should review their current policies and procedures to ensure compliance with the EEOC’s updated guidance. To reduce the likelihood of a testing-related ADA claim, employers should proceed cautiously and consult legal counsel if necessary. Employers should also carry Employment Practices Liability Insurance to cover the high cost of defending actual and alleged claims of unlawful conduct.

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