Now almost two and a half years into the pandemic, employers may think they have hit their stride on what to do to make sure their employees are COVID-19-free and safe. As with everything in life, you need to be up to date on the latest guidance. On July 12, the EEOC tweaked their COVID-19 Guidance with regard to when an employer can require a worker to take a viral test before returning to work.
We Can’t Just Test Everybody?
The old EEOC Guidance stated that an employer could take screening steps to determine if employees entering the workplace have COVID-19. Although a test (or even a temperature check) is a medical exam, at the outset of the pandemic the EEOC said that those kinds of checks were acceptable under the ADA because it was “job-related and consistent with business necessity.” That guidance was primarily based on the CDC guidance at the time and the high community transmission rates. Not surprisingly, as circumstances change, so does what the EEOC says is okay under the ADA.
As of last week, the EEOC reiterated that a mandatory COVID-19 screening test for all employees constitutes a medical examination under the ADA and can only be done if the employer shows that it is “job-related and consistent with business necessity.” So, you can no longer simply require your employees to be tested to come to work — unless you meet that standard.
How do I know it is a business necessity?
The new EEOC guidance says that employers should look to current guidance from the CDC, FDA and state or local public health authorities on the conditions of COVID-19 transmission in their communities. As we all know, and as the EEOC notes, these recommendations change. Currently, the factors you should examine are:
- level of community transmission;
- vaccination status of employees;
- breakthrough infection possibilities for certain strains of COVID-19;
- possible severity of illness from the current variant; and
- what sort of contact the employees may have among each other.
Unfortunately, the EEOC does not give us a bright line test at this time. Employers should well-document the factors they consider when determining whether or not to mandate a COVID-19 test (or any other medical exam related to COVID-19) and keep current on CDC guidelines and local transmission news.
This guidance does not prevent you from imposing restrictions on an employee’s return to work after a positive COVID-19 test. You should consult the CDC guidance on quarantine times to make those decisions.