November 29, 2022

Volume XII, Number 333

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November 29, 2022

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November 28, 2022

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EEOC Revises COVID-19 Testing Guidance for Employers

On July 12, 2022, the EEOC revised its informal guidance regarding COVID-19 and related matters in the workplace. In doing so, the EEOC made several revisions concerning employer testing protocols, items to consider for vaccine mandates, among other revisions to FAQs.

Most notably, the EEOC revised its guidance regarding viral screening of employees for COVID-19. The EEOC no longer considers viral screening (or testing) to automatically meet the business necessity standard under the ADA as it did at the outset of the pandemic. Rather, employers need to evaluate whether current pandemic and individual circumstances warrant testing to prevent workplace transmission. Those factors must lead to a decision that testing is a business necessity and not just a preferable policy.

The EEOC guidance provides the following factors to consider in determining whether circumstances indicate testing would be a business necessity:

  • 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 may include.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 207
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About this Author

Employers, whether large or small, face an ever-growing web of workplace regulations and potential entanglements with employees. At Polsinelli, we have more than 50 full-time Labor and Employment attorneys who understand the complexity and sensitivity of employee relations and workplace issues.

As exclusively management counsel, our attorneys have extensive experience providing employers with cost-efficient advice and aggressive defenses on employment and labor law matters. We have represented Fortune 500 corporations and privately owned entrepreneurial firms, with recent...

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