The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 FAQ page July 12, limiting COVID testing in the workplace just as coronavirus cases are rising once again.
However, the guidance doesn’t offer a lot of specifics and it still defers to current guidance from other agencies such as the U.S. Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA) and state and local public health authorities.
One thing that is clear in the updated guidance is that an employer’s ability to “require (a COVID-19 test) is not unlimited,” according to law firm Littler Mendelson.
Tests OK if ‘job-related, consistent with business necessity’
EEOC says an employer can require employees to be tested for COVID as a condition of returning to or remaining at work only in cases where it’s “job-related and consistent with business necessity under the Americans with Disabilities Act (ADA).”
Specifically, the updated guidance states, “Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the ‘business necessity’ standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing.”
EEOC says to consider these things in assessments
How is an employer supposed to know when it can require a COVID-19 test? EEOC says possible considerations in making an assessment may include:
- level of community transmission
- vaccination status of employees
- accuracy and speed of processing for different types of COVID-19 viral tests
- degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
- ease of transmissibility of the current variant or variants
- possible severity of illness from the current variant
- what types of contacts employees may have with others in the workplace or elsewhere that they’re required to work, and
- potential impact on operations if an employee enters the workplace with COVID-19.
And again the guidance refers to CDC and other federal, state and local guidance in helping to determine if COVID-19 testing is appropriate.
Testing isn’t necessary despite current COVID situation?
What does that all mean? According to Littler Mendelson attorneys Devjani Mishra and James Paretti Jr., “It appears that the EEOC plans to take the position that a COVID-19 screening test for employees entering the workplace is not per se or presumed permissible. Rather, an employer must be able to demonstrate that such a test is necessary for the safety of the workplace, and consistent with the job in question.”
But, Mishra and Paretti point out, the EEOC also advises employers to stay current with CDC and other public health authorities’ recommendations.
Considering that the latest strains of COVID-19 are causing an increase in cases across the U.S., “it’s not clear what, if any, immediate practical impact this updated guidance will have in light of current rates of COVID-19 community transmission.”
Keep in mind that, at this time:
- it’s widely reported that the Omicron BA.5 COVID-19 variant is possibly more transmissible than previous variants
- vaccination rates vary widely by state with the U.S. as a whole “stalled at an overall vaccination rate of 67% and a booster rate of just 32%,” and
- the CDC is still emphasizing the importance of booster doses of the COVID-19 vaccine and “employers are well advised to account for employee vaccination rates in their COVID-19 safety practices,” Mishra and Paretti point out.
To put it bluntly, the CDC and other federal agencies still view COVID-19 as a public health crisis.
Law firm: Review protocols, but testing is still a necessity
Bottom line: Littler Mendelson states that employers may want to review their current protocols on mandatory testing for entry to the workplace to make sure they’re consistent with the EEOC’s state position.
However, “as the pandemic continues, it would appear that testing for the virus remains ‘consistent with business necessity.'”