On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance regarding COVID-19 testing in the workplace. Below is a summary of those changes.
On-Site COVID-19 Testing
Prior to the update, the EEOC simply stated that COVID-19 viral testing was permissible for on-site employees. Now, under the Americans with Disabilities Act (ADA), employers may mandate a COVID-19 viral test when evaluating an employee’s initial or continued presence in the workplace only if the employer can show it is job-related and consistent with business necessity.
When it comes to the “business necessity” analysis, the EEOC states the assessment may include “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 confirms that antibody testing will not meet the ADA disability standard of being job-related and consistent with business necessity. That is because antibody testing may not show whether an employee has a current infection, nor does it establish that an employee is immune to COVID-19 infections.
The EEOC states that an employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as the employer does so for all entering employees in the same type of job, regardless of whether the applicant has a disability or not. Additionally, if an employer screens everyone for COVID-19 prior to entering the worksite, then an applicant may be screened for COVID-19 pre-offer.
Rescinding Job Offers
The EEOC states that an employer may not postpone the start date or withdraw a job offer because of the employer’s concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19. If an underlying medical condition is a disability, an employer must determine whether the individual’s disability poses a “direct threat” under the ADA by starting work immediately and, if so, whether reasonable accommodation can be provided to sufficiently lessen or eliminate any risks without causing an undue hardship.
Employers should familiarize themselves with this new EEOC guidance and if necessary, adjust their COVID-19 policies and protocols to stay in compliance.
Information provided by Cascade Employers Association