United States: The EEOC's Updated Guidance On Employer COVID-19 Safety Requirements

The Equal Opportunity Commission (EEOC) updated its "Technical Assistance Questions and Answers" as of July 12, 2022 to reflect new standards for COVID-19 screening in the workplace. The updated Q&A can be found here. The revised guidance is based on the "evolving pandemic circumstances" that the EEOC considers when determining compliance with the ADA. The guidance also distinguishes between viral testing and antibody testing – explicitly barring the use of antibody testing for employees re-entering the workplace.

Can Employers Require COVID-19 Screening?

Yes, but an employer must show that testing is job-related and consistent with business necessity. At the beginning of the COVID-19 pandemic, the EEOC's assessment was that the ADA standard for conducting medical examinations was met for employers to conduct COVID-19 viral test screening of employees. The updated guidance now requires "individual assessment by employers to determine whether such testing is warranted."

In order for an employer to mandate a COVID-19 viral test as a screening test for new or continued employment, the employer must now show that the test "is job-related and consistent with business necessity." Whether or not testing is "consistent with business necessity" will be based on whether it is "consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing."

The EEOC provides a list of factors that may be considered when determining whether testing is a "business necessity," including:

"[T]he 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."

Employers that intend to mandate testing should monitor evolving CDC guidance.

Can Employers Screen Job Applicants For COVID-19 Symptoms?

Yes, if the employer screens everyone entering its facilities. An employer may only screen applicants for COVID-19 during the pre-offer stage if screening is required of every person who enters the workplace, and if entering the workplace is part of the application process. Applicants can be screened for symptoms once they receive a conditional job offer – provided that screening is required of all employees in the same position.

Can Employers request a doctor's note from Employees returning to the workplace post COVID?

Yes. The EEOC's updated guidance states that employers may require that employees returning to the workplace after being out with COVID-19 provide a note from a qualified medical professional stating that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties. However, employers can also choose to follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional. The EEOC advises that, because it may be difficult to obtain a note from a medical professional in a timely manner, businesses may need to rely on local clinics as a practical matter.

Can Employers Use Antibody Testing Before Permitting Employees to Re-Enter the Workplace?

No. The EEOC's updated guidance states that COVID-19 antibody testing is different than a viral screening test. While a viral screening test can meet the ADA's "business necessity" standard, antibody testing cannot meet the standard. The CDC's current guidance indicates that antibody testing does not show whether an employee is currently infected. The CDC has also found that antibody testing does not "establish that an employee is immune to infection." As a result, the EEOC advises that using any form of antibody testing is inappropriate to determine whether an employee can re-enter the workplace.

What Does This Mean For Employers?

Employers that currently mandate COVID-19 testing for their employees should review their policies. At a minimum, these employers will need to monitor CDC updates and adapt their requirements to the level of community transmission in their area. Employers will also need to make certain that their policies are in compliance with the ADA. Employers are well advised to confer with experienced employment counsel to review their policies and testing requirements in light of the EEOC's updated guidance.

Contributions to this post were made by summer associate Timothy D. Hopper.

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