On July 12, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 FAQs and as a result, revised certain earlier guidance regarding permissible COVID-19 testing, workplace screening, and return to work certifications. The EEOC explained that this revised guidance was due in part to the evolving circumstances of the pandemic but cautioned that these revisions were not intended to suggest that workplace safety policies related to COVID-19 were no longer warranted.

Mandatory Viral COVID-19 Testing

Many employers continue to test employees for COVID-19 in the workplace. Until recently, the EEOC took the position that workplace COVID-19 testing was presumed to be a permitted “medical examination” under the Americans with Disabilities Act (ADA) because of the state of the pandemic. The EEOC has now updated its guidance and has removed this blanket presumption.

In its July 12 update, the EEOC explained that because of the evolving nature of the pandemic, employers may continue to administer COVID-19 testing as a mandatory screening measure, but only if the employer can demonstrate that doing so is “job-related and consistent with business necessity.” The EEOC explained that viral testing policies will meet the “business necessity” standard based on then-current guidance from the Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state or local public health authorities – and cautioned employers that this guidance too was constantly evolving. The EEOC recommends employers make an individualized assessment to determine whether a testing policy meets the “business necessity” standard and suggests employers evaluate the following factors:

  • The level of community transmission and the vaccination status of employees (if known).
  • The ease of transmissibility of the current variant(s).
  • The possible severity of illness from the current variant.
  • The accuracy and speed of processing for different types of COVID-19 viral tests and the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations.
  • What types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals).
  • The potential impact on operations if an employee enters the workplace with COVID-19.

All companies, especially those with multiple locations, should carefully review any mandatory testing policies in light of this new guidance.

Antibody Testing

The EEOC’s updated guidance also clarifies that employers may not require employees to undergo antibody testing to return to the workplace. The EEOC explained, relying on CDC guidance, that antibody testing may not show whether an employee has a current infection or establish that an employee is immune to infection. Therefore, this type of “medical examination” does not meet the ADA’s “business necessity” standard and should not be used to determine whether an employee can safely enter the workplace.

Applicant Screening for COVID-19

In the EEOC’s earlier guidance, the commission explained that employers may screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided the employer does so for all entering employees in the same type of job. The EEOC has updated its guidance to further explain that if an employer requires screening/testing of everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the workplace, an applicant in the pre-offer stage who needs to be on-site in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19 – again, provided the applicant receives the same screening as others.

The EEOC further advises that if an applicant is unable to start new employment based on a COVID-19 positive test/symptoms/exposure, employers who follow CDC guidance may withdraw a job offer only if one or more of the following factors applies:

  1. The job requires an immediate start date.
  2. CDC guidance recommends the person not be in proximity to others.
  3. The job requires such proximity to others at the workplace or elsewhere.

However, even under these circumstances, the EEOC notes that “for some individuals there may only be a short period of time required for isolation or quarantine” and “employers may be able to adjust a start date or permit telework,” implying that employers should consider these alternatives if possible before rescinding a job offer. However, the EEOC clearly states that an employer may not unilaterally postpone or withdraw a job offer because of an employer’s concern that an individual is older, pregnant, or has an underlying medical condition that could put them at increased risk from COVID-19. As stated by the EEOC, “[a]n employer’s concern for an applicant’s well-being – an intent to protect them from what it perceives as a risk of illness from COVID-19 – does not excuse an action that is otherwise unlawful discrimination.”

Safe Return to Work

The EEOC’s update also reminds employers when it may require an employee to provide a doctor’s note stating when it is safe to return to work after being out with COVID-19. As the EEOC has previously explained, COVID-19 is not always a disability. However, if the request is considered a disability-related inquiry, employers are justified under the ADA to inquire under the “business necessity” standard if the request is related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working. Alternatively, the EEOC encourages employers to rely on CDC guidance to determine whether it is safe for an employee to return to work without needing confirmation from a medical professional.

While the updated guidance provides employers important information as they continue to navigate the ever-evolving issue of COVID-19 in the workplace, the EEOC’s new FAQs signal that the EEOC is focusing on ensuring broad COVID-19 policies are indeed a “business necessity” and do not unreasonably infringe on employee rights.

Please contact the authors if you have any questions about this latest development.