The Equal Employment Opportunity Commission (EEOC) recently issued new guidance related to COVID-19 testing in the workplace. Previously, the EEOC allowed employers to screen workers for COVID-19 without violating the Americans with Disabilities Act (ADA) due to the state of the pandemic. However, the EEOC recently said employers can continue to administer viral tests as a condition of entering the workplace, if the employer can show the  testing practices are “job-related and consistent with business necessity.”  

Here are the relevant points from the latest EEOC guidelines:

1. Mandatory COVID-19 Screening is Still Permissible If it is Job-Related and Consistent with Business Necessity.

The EEOC listed the factors employers should consider to meet this test:  

• Community transmission levels and the transmissibility of current COVID-19 variants,
• The accuracy and speed of processing different types of COVID-19 viral tests,
• Employees’ vaccination status,
• Working conditions, and
• The potential impact of positive cases on operations
• Antibody Tests Are Not Permitted as a Condition of Re-Entering the Workplace

Employers are still unable to use antibody tests to measure whether an employee has a current COVID-19 infection. Although viral tests detect whether someone is infected with COVID-19, an antibody test measures proteins, which may indicate an employee had a past infection only.

• COVID-19 Screening Questionnaires Are Still Broadly Permitted

Employers are still allowed to ask all employees who are physically entering a worksite if they have COVID-19 symptoms or have been diagnosed with or tested positive for COVID-19.

Employers may exclude employees with COVID-19 or associated symptoms from the workplace because their presence would pose a direct threat to the health and safety of others. This screening does not apply to workers who work remotely or otherwise do not have in-person contact with co-workers, customers, or other business partners.

• Employers May Require ‘Return-to-Work’ Confirmation from a Medical Professional

If employees miss work because they tested positive for COVID-19, employers can require them to provide a note from a qualified medical professional confirming that they may safely return to the workplace and are able to perform their job duties. However, a doctor’s note is not required. Employers can opt to follow the latest guidance by the CDC or state/local public health officials.

• Employers May Screen Job Applicants for COVID-19 Symptoms

Employers may screen a job applicant for COVID-19 symptoms after making a conditional job offer if all employees in the same type of job are screened in the same manner.  According to the EEOC, employers who violate this guidance will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination.

Employers may also screen job applicants prior to allowing them onsite for the interview process, if everyone is screened, i.e., job applicants, employees, contractors, and visitors.

• Employers Should Carefully Consider the Circumstances Before Withdrawing a Job Offer

If a candidate tests positive for COVID-19, has symptoms, or has recently been exposed, employers may be able to withdraw the job offer if:  

• The job requires an immediate start date,
  • The CDC guidance recommends the person not be in proximity to others, and
  • The job requires such proximity to others, whether at the workplace or elsewhere.
• Employers Should Review Compliance with Other Employment Laws

Employers that continue to test workers for COVID-19 should ensure compliance with additional employment laws beyond the ADA.

What Does This Mean for Employers?

As the EEOC cautioned, employers should conduct an individualized assessment to determine whether COVID-19 testing is warranted and consistent with the requirements of the ADA.

For assistance with individualized assessments, contact the attorneys at York Bowman Law, LLC.