EEOC Guidance Indicates COVID-19 Screening Is No Longer Presumed to Meet ADA’s Business Necessity Standard

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Featured EEOC Guidance Indicates COVID-19 Screening Is No Longer Presumed to Meet ADA’s Business Necessity Standard

The U.S. Equal Employment Opportunity Commission (EEOC) has updated its position on the necessity of COVID-19 screening. Under the agency’s latest guidance, viral screening of employees is no longer presumed to be a business necessity. Instead, employers must consider if the individual circumstances of their workplace and the pandemic justify testing for COVID-19.

This announcement is a significant change in the EEOC’s position. Previously, it stressed the Americans with Disabilities Act (ADA)’s requirement for medical examinations to be job-related and pushed COVID-19 screening as a business necessity. The EEOC clarified that this does not indicate that testing is no longer warranted. It stresses that employers must make their own assessment of whether meeting these ADA requirements is necessary. According to the EEOC’s announcement, some factors to consider include:

  • The level of community transmission
  • Employees’ vaccination status
  • The accuracy and speed of the viral test to be used
  • The degree to which breakthrough infections are likely to affect vaccinated employees
  • The transmissibility of the current variants
  • The potential severity of the illness caused by the current variants
  • The level of contact employees have with others
  • The individuals with whom employees work, such as medically vulnerable populations
  • The impact which an individual infected with COVID-19 may have on operations

In analyzing these factors, the EEOC urges employers to keep up to date with the latest CDC guidelines and other relevant sources. This vigilance could be particularly crucial as variants continue to play a primary role in the severity and transmissibility of COVID-19 infections. It is also important to note that the EEOC still does not permit antibody testing, the preference for viral tests.

The EEOC has also updated its guidance regarding employees returning to work after a COVID-19 infection. Employers may require a doctor’s note certifying there is no transmission risk and the employee can perform their job duties before permitting an employee to return, regardless of whether the infection is considered a disability. However, the EEOC has added that employers can follow the CDC guidance to determine whether an employee can safely return to work.

What Should Employers Do Now?

Employers should immediately review their mandatory testing programs to assess whether they meet the standards for business necessity. In addition, employers should review local, state, and federal guidelines and remain abreast of changes to ensure they meet this standard.

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