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EEOC Recommends Employers Justify Mandatory Workplace COVID-19 Testing

By Hall Benefits Law / Lexology Blog – September 15 2022

The Equal Employment Opportunity Commission (EEOC) recently issued guidance about mandatory COVID-19 testing in the workplace. Until now, employers could require worksite COVID-19 testing without assessing current conditions or justifying its necessity. The EEOC stated in its guidance that employers now must perform an individualized assessment of the current state of the COVID-19 pandemic and other circumstances in the workplace to justify mandatory COVID-19 testing for employees.

A test for COVID-19 is a medical examination within the meaning of the Americans with Disabilities Act (ADA). The EEOC guidance further states that employers must show that COVID-19 testing in the workplace is job-related and consistent with business necessity, as the ADA defines those terms. The EEOC makes it clear in its guidance that it is not suggesting that COVID-19 in the workplace is or is not warranted.

Meeting the Business Necessity Standard

An employer can meet the business necessity standard when mandatory screening of employees is consistent with guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and other state or local public health authorities. Employers must consider all relevant factors in determining whether mandatory screening of employees is necessary. The factors that employers might consider when they assess the business necessity of mandatory COVID-19 testing in the workplace include the following:

1. The current level of community transmission;
2. The vaccination status of employees;
3. The accuracy and speed of proceeding with diverse COVID-19 tests;
4. The degree to which breakthrough infections are possible for employees who are up to date on their vaccinations;
5. The ease of transmissibility of the current variant(s) of the virus;
6. The possible severity of the current variant(s) of the virus;
7. What types of contacts do employees have with others in the workplace or in other locations in which they are required to work; and
8. The potential impact on operations if an employee enters the workplace with a COVID-19 infection.

The EEOC also points out in its guidance that requiring employees to take antibody tests does not meet the business necessity standard for medical examinations or inquiries for employees under the ADA. In addition, CDC guidance explains that antibody tests may not show whether employees have a current infection or if they are immune to infection. As a result, antibody test results are not useful in determining whether an employee should enter a workplace without risk of infecting others.