Workplace COVID Testing Must Be “Business Necessity” United States Equal Opportunity Commission Says

The United States Equal Opportunity Commission (“EEOC”) enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.

On July 12, 2022, the EEOC announced that employers should take more factors into consideration when choosing whether to screen employees for Covid-19. Now, “employers will need to access whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees in an update to its technical assistance guidance (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#A.6). The EEOC found that a “Covid-19 test is a medical examination within the meaning of the [Americans with Disabilities Act].” As a result, if an employer requires mandatory medical tests of employees, they must “be job-related and consistent with business necessity.”

The EEOC said, if “an employer seeks to implement screening testing for employees, such testing must meet the ‘business necessity’ standard based on relevant facts.” Prior to the July 12 announcement, workplace Covid-19 testing was permitted without any required justification or assessment. Now, employers are required to consider some of the following factors when determining whether or not they are permitted to test:

1. The level of community transmission
2. The vacation status of employees
3. The degree of breakthrough infections of vaccinated workers
4. The transmissibility of current variants
5. The possible severity of illness from a current variant
6. Contact that employees may have with others during the course of their work
7. The potential impact operations if an employee enters the workplace with Covid-19.

Employers should check the latest CDC guidance https://www.cdc.gov/coronavirus/2019-ncov/hcp/testing-overview.html (and other relevant sources including https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/testing-non-healthcare-workplaces.html) when determining whether or not it is appropriate to test their employees.

“This change is not meant to suggest that such testing is or is not warranted,” the EEOC said. “Rather, the revised [guidance] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted.”