The US Equal Employment Opportunity Commission updated its guidance on employer COVID-19 testing programs on July 12. The update reinforces that the evolving circumstances of the COVID-19 pandemic require an individualized assessment to determine whether testing is lawful in a given scenario.
The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquiries or requiring medical examinations of employees unless the employer can show that such inquiries or exams are job-related and consistent with business necessity. Prior to July 12, the Equal Employment Opportunity Commission (EEOC) advised that mandatory COVID-19 testing met this requirement in all circumstances because employees entering the workplace with the COVID-19 virus posed a direct threat to the health of others.
The updated guidance clarifies that, due to the changing circumstances of the pandemic and the threat the virus poses, employers will need to make an individualized assessment to determine whether mandatory testing is warranted going forward.
Specifically, the new guidance reiterates that mandatory COVID-19 screening is only acceptable if an employer can show that it is job related and consistent with business necessity. The guidance states that employer use of COVID-19 screens at a workplace will always be job-related and consistent with business necessity when adhering to recommendations from the Centers for Disease Control (CDC), Food and Drug Administration (FDA), and/or public health authorities.
Current CDC guidance on COVID-19 community levels and prevention recommends the use of screening testing or other testing strategies when community transmission levels are at the medium or high level. Importantly, it does not recommend those protocols when community levels are low, but merely recommends that organizations ensure access to testing.
The guidance clarifies that considerations beyond CDC and other public health guidance may also be relevant to justify continued use of COVID-19 testing programs. These include:
The EEOC stresses that the change is not meant to suggest that testing is no longer warranted. It instead is meant to acknowledge the evolving circumstances of the pandemic and reiterate the need for individualized assessment under the ADA.
As the guidance notes, however, there are circumstances where employers can continue to mandate COVID-19 screening in areas of low transmission. The current variant of COVID-19, BA.5, may provide a particularly compelling reason to continue that practice given its reported infectiousness and propensity to infect persons with prior immunity and “up-to-date” vaccination status. However, employers should ensure that they have analyzed the continued need for testing in accordance with the factors cited by the EEOC when making that determination.
It is expected that the EEOC will continue to roll back some of its prior guidance on COVID-19 if it perceives reduced risks from the pandemic. Employers should continue to monitor developments in this space and reevaluate COVID-19 policies in light of any changes.
Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT. to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of new updates to these resources.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Jacqueline C. Aguilera
Daryl S. Landy
A. Klair Fitzpatrick
Emily Cuneo Desmedt