September 28, 2022

Volume XII, Number 271

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September 27, 2022

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Update to EEOC's Position on Mandatory COVID testing

On July 12, 2022, the Equal Employment Opportunity Commission ("EEOC") updated its guidance regarding COVID-19 workplace viral screening testing. 

The EEOC's original position on COVID-19 workplace viral screening testing was that it always met the Americans with Disabilities Act ("ADA") standard for conducting medical examinations.

However, on July 12, 2022, the EEOC explained 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." 

The EEOC's FAQ A.6 now provides that an employer, as a mandatory screening measure, may administer a COVID-19 viral test "if the employer can show it is job-related and consistent with business necessity." 

Fortunately, the EEOC has provided eight factors for businesses to consider in determining whether the new "business necessity" standard is met:

  • 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(s);

  • 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.

It is important for business owners to appropriately conduct and document the above analysis. 

The EEOC's COVID-19 guidance concerning COVID-19 workplace viral testing may further evolve, so it will be important for business owners to periodically review the EEOC's current FAQs.

© 2022 Ward and Smith, P.A.. All Rights Reserved.National Law Review, Volume XII, Number 199
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About this Author

Attorney

Will leads the firm's Workplace Safety and Health practice.  His practice experience encompasses various areas of employment and workplace-related counseling and civil litigation in both the federal and state courts at the trial and appellate levels.  Will also regularly represents employers and employees before the United States Department of Labor (USDOL), the Equal Employment Opportunity Commission (EEOC), the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), the North Carolina Department of Labor (NCDOL), the North Carolina...

910.794.4813
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