November 28, 2022

Volume XII, Number 332

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EEOC Potentially Limits Employer’s Right to Mandate COVID-19 Testing

On July 12, 2022, the US Equal Employment Opportunity Commission (EEOC) revised its guidance on compliance with disability discrimination law during the COVID-19 pandemic. While previous guidance, initially published on December 14, 2021, provided that COVID-19 viral testing was permissible for on-site employees and did not run afoul of the Americans with Disability Act (ADA) due to health and safety priorities of the pandemic, the recent EEOC updates now only permit screening and viral testing measures when such measures are job-related and consistent with business necessity, holding COVID-19 testing to the same standard as other workplace medical tests. The July 12 update “makes clear that going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening of employees to prevent workplace transmission of COVID-19,” the EEOC said.

IN DEPTH

The updated EEOC guidance explains that to remain in compliance with the ADA, any viral testing program, which is considered a medical examination under the ADA, must be “job-related and consistent with business necessity.” This is consistent with the EEOC’s pre-pandemic guidance about subjecting employees to medical examinations. The EEOC’s latest guidance clarifies that implementing viral testing to screen employees before they return to the office after exposure to or contracting COVID-19 will typically meet the “business necessity” requirement, as long as testing procedures are consistent with the current guidance from the US Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA) and other public health authorities. Additionally, the EEOC lists certain factors employers may consider, including:

  • The level of community transmission;

  • The vaccination status of employees;

  • The accuracy and speed of obtaining test results;

  • The possibility of breakthrough infections among vaccinated employees;

  • The transmissibility of the current COVID-19 variant;

  • The possibility of severe illness resulting from infection with the current variant;

  • The nature of contacts employees may have in the workplace or any other location where they are required to work (e.g., assisted living or retirement facilities, hospitals or other medical centers with a high number of medically vulnerable individuals); and

  • The impact on operations if an employee infected with COVID-19 is present in the workplace.

Employers must also consider reasonable accommodation obligations, if applicable, before making any decisions.

SCOPE OF THE UPDATED GUIDANCE

Importantly, the updated guidance pertains only to viral testing. Employers remain prohibited from requiring antibody tests in order for employees to return to work. The EEOC’s guidance does not distinguish between at-home and lab-verified results.

TAKEAWAYS

After this most recent update to the EEOC guidance on COVID-19, employers will need to reevaluate any mandated viral testing policies before employees return to work, unless these policies are implemented in response to OSHA, CDC or other similar obligations. Employers also need to be mindful of their obligations under relevant state or local law; for employers with a multi-location workforce, they may need to implement various testing requirements based on applicable law and community transmission rates.

Moreover, the updates prompt employers to make individual assessments under the ADA and take certain factors into account when carrying out this fact-based analysis. Employers should contact their McDermott lawyer to discuss how the EEOC’s “business necessity” analysis may be implicated with ongoing COVID-19 waves.

Laura Sabia, a Summer Associate in the Boston office, also contributed to this article.

© 2022 McDermott Will & EmeryNational Law Review, Volume XII, Number 202
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About this Author

Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY
Associate

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

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Michelle S. Strowhiro
Partner

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...

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Lindsay Ditlow Employment Attorney McDermott Will & Emery New York, NY
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Lindsay Ditlow is experienced in all aspects of employment law, including litigation, counselling, and corporate transactions.

As a trial lawyer, Lindsay has successfully represented numerous clients in employment litigations, including cases involving claims under Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Credit Reporting Act, the Family Medical Leave Act and state leave laws, the Inevitable Disclosure Doctrine, state discrimination and retaliation statutes, the Fair Labor Standards Act, and state wage and hour laws.

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