EEOC Updates Guidance on COVID-19 Testing & Related Issues

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The EEOC says the changes were made to acknowledge that pandemic circumstances have evolved.

The U.S. Equal Employment Opportunity Commission (the EEOC) has updated its guidance on conducting COVID-19 tests on employees and its guidance on certain other pandemic-related issues. The EEOC says the changes were made to acknowledge that pandemic circumstances have evolved.

The Details:

COVID-19 Viral Testing of Employees:

Under previous guidance, the EEOC stated that the Americans with Disabilities Act's (ADA's) standard for all employers to conduct COVID-19 viral testing for on-site employees had been met.

In the updated guidance, the EEOC makes clear that ADA-covered employers must now assess whether the current pandemic and workplace circumstances justify such testing to prevent the transmission of COVID-19. Specifically, employers must show viral testing is job-related and consistent with business necessity.

The EEOC suggests employers consider various factors when assessing whether testing is consistent with business necessity, including:

  • 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 variants
  • The possible severity of illness from the current variants
  • What types of contact employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals)
  • The potential impact on operations if an employee enters the workplace with COVID-19

Note: In its guidance, the EEOC retains its stance that antibody testing for COVID-19 is still prohibited under the ADA, but the EEOC provides an updated rationale for its position.

Screening Applicants for COVID-19 Symptoms:

In previous guidance, the EEOC stated that an employer may screen job applicants for symptoms of COVID-19, provided it is conducted after making a conditional job offer and as long as the employer does so for all entering employees in the same type of job.

In the updated guidance, the EEOC retains that language, but adds that if an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 symptoms before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19. However, the screening must be limited to the same screening that everyone else undergoes.

Other Updates:

The EEOC also updated its guidance on:

  • Withdrawing job offers for reasons related to COVID-19
  • Providing reasonable accommodations
  • Return-to-work procedures after an employee has COVID-19
  • COVID-19 vaccination requirements
  • And other issues.

See the guidance for details.

Next Steps:

  • Read the guidance in full (the changes discussed above are dated 7/12/22).
  • Consult legal counsel to consider the impact the guidance, as well as state and local laws, have on current COVID-19 policies and practices.

ADP Compliance Resources

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Updated on July 19, 2022

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