By: Michelle M. De Oliveira, Esq.

On July 12, 2022, the Equal Employment Opportunity Commission updated its Guidance with respect to COVID-19 workplace testing. According to the EEOC, an employer may administer a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace so long as the employer can show that it is job-related and consistent with business necessity.

Employers must establish that COVID-19 workplace testing is job-related and consistent with business necessity because a COVID-19 test is a medical examination within the meaning of the Americans with Disabilities Act (ADA). Employers may be able to establish that the test meets the “business necessity” standard when it is consistent with current guidance at the time of testing from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), or state or local public health authorities.

To determine whether the “business necessity” standard is met, considerations for employers include:

  • level of community transmission
  • employees’ vaccination status
  • COVID-19 tests’ accuracy and speed of processing
  • degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
  • ease of transmission
  • possible severity of illness from current variants
  • type of contact employees may have with others in the workplace (e.g., working with medically vulnerable individuals)
  • potential impact on operations if an employee with COVID-19 is in the workplace

The EEOC reminds employers that they should review CDC guidance to determine whether to administer COVID-19 tests. Current CDC guidance, dated August 25, 2022, provides that: (a) individuals with COVID-19 symptoms or who have had known exposure should be tested; (b) vaccination status does not affect COVID-19 test results; and (c) testing can provide helpful information to limit transmission and outbreaks in high-risk congregate settings.

Although COVID-19 workplace testing may be permissible, employers may not require antibody testing before allowing employees to re-enter the workplace. Doing so violates the ADA.

Additional updates in the EEOC’s July 12, 2022 guidance are as follows:

  • Screening job applicants after conditional job offers—Employers may screen applicants for COVID-19 symptoms after making a conditional job offer so long as it does so consistently for all employees entering the same job type. 
  • Screening individuals before entering jobsite/workplace—Employers that screen everyone (i.e., applicants, contractors, visitors, employees) for COVID-19 before granting access to a jobsite may also screen a job applicant before extending a job offer. 
  • Withdrawing job offers—An employer that follows CDC guidance may withdraw a job offer when it needs an applicant to start working immediately because the individual has COVID-19, has COVID-19 symptoms, or was exposed to someone with COVID-19 if: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be close to others, and(3) the job requires the individual to be close to others. 
  • Concerns relating to employees who are older, pregnant, or who have a medical condition—Employers may not postpone an individual’s start date or withdraw a job offer because of a concern that the individual is older, pregnant, or has an underlying medical condition that puts the individual at increased risk from COVID-19. 
  • Employers may require use of PPE (i.e., masks, gloves)—Generally, employers may continue to require employees to use PPE as may be necessary for the position. Employers must have a discussion (or interactive dialogue) with employees who request a reasonable accommodation because of any such requirements. 
  • Medical note to return to work after being out with COVID-19—employers may require that employees provide a note from a qualified medical professional, explaining that the employee may return to work after the employee was out with COVID-19. Alternatively, employers may rely on CDC guidanceto determine whether it is safe for an employee to return to work without first providing a doctor’s note.

Employers may continue to ask employees in the workplace if they have COVID-19, COVID-19 symptoms, and if they have been tested. Employers may also continue to exclude those with COVID-19, or COVID-19 symptoms from the workplace.  That said, employers are, generally, not allowed to ask these questions to employees who are working remotely.

Guidance relating to COVID-19 and workplace safety has been constantly changing and developing, and we will continue to keep employers informed about these developments. This client alert is meant to provide a general overview of recent updates, and employers that have questions are encouraged to contact a K&S employment attorney for information and guidance that is employer specific.

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This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax or professional advice or services. You should seek specific detailed legal advice prior to taking any definitive actions.