2022 New Jersey Women Business Leaders Forum Register

The U.S. Equal Opportunity Employment Commission recently updated its guidance for employers on COVID-19 workplace policies, including testing, to reflect evolving public health information and the need for a more nuanced assessment of community risk and disease spread.

Until July 12, the EEOC’s position had been that the Americans with Disabilities Act always permitted mandatory workplace screenings for the virus under all scenarios. Now, the EEOC is saying that employers should assess whether current pandemic circumstances and individual workplace circumstances justify COVID-19 testing to prevent workplace transmission of the virus.

Specifically, an employer must show that testing is job-related and consistent with business necessity, as defined by the Americans with Disabilities Act (ADA). The EEOC said factors that employers should consider are the latest guidance from public health authorities, the transmission rate in the community, the vaccination and booster status of employees and the level of contact employees have at work.

“This change is not meant to suggest that such testing is or is not warranted,” the EEOC stated in the July 12 update to its Technical Assistance Questions and Answers document. Rather, it acknowledges that “evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”

The EEOC said employers may continue to require a note from a medical professional when an employee who has been out due to COVID-19 comes back to work. However, under the revised guidance, employers may also dispense with requiring written medical confirmation and instead follow the current CDC guidance on quarantining and isolation.

In addition, employers are specifically prohibited from requiring a COVID-19 antibody test as a condition for returning to work because, according to the CDC, these tests are not indicative of a current infection, immunity to COVID-19, or an employee’s ability to work.