September 27, 2022

Volume XII, Number 270

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September 26, 2022

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EEOC States Employers Must Show Business Necessity to Test Workers for COVID-19

The U.S. Equal Employment Commission (“EEOC”) has recently updated its Technical Assistance Questions and Answers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” (“Q&A)  and taken the position that employers may only screen employees for COVID-19 if it is a business necessity that is justified by “current pandemic circumstances and individual workplace circumstances” because a COVID-19 viral test is a medical examination within the meaning of the ADA.

Previously, the EEOC’s position as set forth in the Q&A was that the standard under the ADA for conducting medical examinations was always met for employers who conducted viral screenings in the workplace for COVID-19. Hunton previously posted about the Q&A and the EEOC’s updates here and here.

In order to prove business necessity, employers must point to factors such as (1) the vaccination status of its workforce; (2) Centers for Disease Control and Prevention information transmission levels in the community at large; (3) types of contact between employees and others in the workplace or other locations where work is performed; (4) accuracy and speed of using different types of tests; (5) possible severity of COVID-19 variants; and (6) the potential impact on operations if an employee enters the workplace with COVID-19.

Further, although this is not new to the Q&A, if an employer does not meet the business necessity test to permit COVID-19 testing, the employer should not use antibody tests as the Center for Disease Control and Prevention has stated that antibody tests are unable to determine whether a  person is currently infected or immune.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 223
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Susan WIltsie Employment Lawyer Hunton Andrews Kurth
Partner

Susan’s practice focuses on labor, employment and OSHA compliance, litigation and defense.

Susan’s practice includes comprehensive OSHA/MSHA representation of employers across all industry sectors. Her OSHA/MSHA practice includes compliance assistance, training, citation defense, participation in rulemaking, appellate administrative litigation, whistleblower cases, creation/oversight of PSM/RMP and general OSHA audit programs, and fatality/serious injury accident investigation.

Susan has 30 years of experience...

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Katherine Sandberg Employment Lawyer Hunton Andrews Kurth Law Firm
Associate

Katherine has extensive experience in wage and hour class actions and high-stakes trade secrets litigation. She also has a demonstrated track record of favorable outcomes in federal and state courts for clients facing claims of discrimination, harassment, retaliation and unfair competition. Moreover, she has guided clients through difficult interactions with administrative agencies and claimants to resolve disputes before lawsuits are ever filed.

Katherine also has significant experience defending business owners in public accommodation access litigation involving claims of...

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