EEOC updates guidance on COVID-19 screening for employers

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance regarding COVID-19 (coronavirus) and the Americans with Disabilities Act (ADA). These FAQs scale back the agency’s approval of mandatory COVID-19 screening measures and clarify several other COVID-19 related issues.

Viral screening tests and “business necessity”: The EEOC now says that the ADA allows an employer to administer a COVID-19 viral test as a mandatory screening procedure only when it can show that the test is job-related and consistent with business necessity based on current facts. (See FAQ A.6.) Earlier in the pandemic, the EEOC considered business necessity to automatically apply. The EEOC also notes that an antibody test isn’t permitted under the ADA because it doesn’t necessarily show a current infection, so it cannot meet the test of business necessity. (See FAQ A.7.)

You may meet the “business necessity” guidance if your procedures for viral testing are consistent with guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state and local public health authorities. The EEOC suggests that relevant facts you should consider in deciding whether viral testing is a business necessity in your workplace 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.” (See FAQ A.6.)

Disability-related inquiries after being out with COVID-19: Following an employee’s return after being out with COVID-19, the ADA allows you to require a confirmation from a medical professional that the employee is allowed to return to work. (See FAQ A.5) This type of fitness-for-duty request is a disability-related inquiry but is permissible because it would be job-related and consistent with business necessity to ensure the returning employee doesn’t spread the virus at work.

Hiring and onboarding: In limited situations, you may be able to withdraw a job offer to someone who is unable to begin work due to contracting COVID-19. If current CDC guidance indicates the worker shouldn’t be near other people, you may withdraw the offer if the job requires an immediate start date and requires proximity to others, whether at the workplace or elsewhere. As a practical matter, because the length of time an individual must isolate or quarantine is usually fairly short, you may want to consider whether you can adjust the start date or permit remote work. (See FAQ C.4.)

Don’t exclude older workers: Updated guidance on avoiding age discrimination states that an employer cannot involuntarily exclude an individual from the workplace due to concerns that their age puts them at greater risk of severe illness from COVID-19. However, an employer is free to provide extra flexibility to older workers if they request it. (See FAQs C.5 and H.1.)

Tips: If you have questions related to the EEOC’s guidance, contact your Vigilant Law Group employment attorney. Also see our Legal Guides, “At a Glance: COVID-19 Compliance” in California, Oregon, and Washington.