On July 12, 2022, the EEOC updated its "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws: Technical Assistance Questions and Answers" by updating its guidance on when employers can routinely test employees for COVID-19 in the workplace without running afoul of the Americans with Disabilities Act ("ADA").
The EEOC has always maintained that testing employees for COVID-19 in the workplace is a "medical examination" under the ADA. In general, under the ADA, an employer may only conduct or require medical examinations if the exams are "job-related and consistent with business necessity." Prior to July 12, 2022, the EEOC maintained that a COVID-19 viral test (i.e., a test to detect the presence of the COVID-19 virus using samples from the nose or mouth and including both laboratory and rapid testing) when evaluating an employee's initial or continued presence in the workplace always met this standard.
However, as of July 12, 2022, the EEOC now requires a more in-depth analysis to determine necessity before viral exams can take place. Just as required for any other examination, employers must now be able to definitively show that such testing is (1) job-related; and (2) consistent with business necessity.
Thankfully, the EEOC also gave employers guidance with respect to the manner in which they can show that viral testing for COVID-19 is job-related and consistent with business necessity. The EEOC stated that "use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the 'business necessity' standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing." The EEOC went on to identify other facts that might be used to meet the "business necessity" standard, such as:
- 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 stated that since an antibody test does not show whether an employee has a current infection, nor establish that an employee is immune to infection, it could never meet the standard for being a "business necessity."
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