United States: The EEOC Issues Updated Guidance On Workplace COVID-19 Testing

Until recently, employers had broad discretion to determine whether their employees were required to take COVID-19 tests prior to entering the workplace. However, newly released guidance from the U.S. Equal Employment Opportunity Commission (EEOC) notes that, as of July 12, 2022, employers must show that mandatory COVID-19 testing is "job-related and consistent with business necessity."

Blanket COVID-19 Testing Must Be Based on a Business Necessity

The EEOC notes that because a COVID-19 viral test (i.e., a nasal or oral test that tells whether someone is infected with COVID-19) is a "medical examination" as that term is used in the Americans with Disabilities Act, employers that implement a mandatory testing policy requiring that employees test negative for COVID-19 before entering the workplace must demonstrate that the testing policy is "job-related and consistent with business necessity." (Previously, the EEOC was of the view that this standard was always met, hence the broad discretion afforded to employers to require testing.) The EEOC guidance states that the use of COVID-19 viral testing as a screening measure meets 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 and local public health authorities that is current at the time of testing." While this explanation is not particularly helpful, since CDC and state and local guidance often change with little notice, the EEOC guidance goes on to note the following factors employers can consider when evaluating whether testing is considered a business necessity:

• The level of community transmission.
• The vaccination status of employees.
• The accuracy and speed of processing of 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).
• The types of contacts employees may have with others in the workplace or other places where they are required to work.
• The potential impact on operations if an employee enters the workplace with COVID-19.

This update from the EEOC is not meant to dissuade employers from testing employees but rather to acknowledge that as the pandemic evolves and changes, employers are now required to make an individualized assessment as to whether a blanket testing policy is warranted.

What Should Employers Do Now?

Employers that still have in place a mandatory workplace testing policy should immediately suspend that policy and assess – based on the above factors and guidance from the CDC and/or state and local public health authorities – whether continued mandatory testing is job-related and a business necessity. As this will be a fact-specific inquiry, employers that have questions or need assistance in making this determination are encouraged to contact a member of our Labor and Employment Practice Group.

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