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EEOC Changes Guidance on COVID-19 Testing

On July 12, 2022, the U.S. Equal Employment Opportunity Commission ("EEOC") issued new guidance on COVID-19 testing. The EEOC said the Americans with Disabilities Act ("ADA") allows employers to require a note from a "qualified medical professional" indicating that it is safe for an employee to return to work. The agency notes that COVID-19 is not always a disability, and thus an employer inquiry may not be disability-related. However, if the request may be disability-related, the employer must show that the request is job-related and consistent with "business necessity." The EEOC said these requests will meet the "business necessity" standard because they are "related to the possibility of transmission and/or related to an employer's objective concerns about the employee's ability to resume working."

The updated guidance also allows employers to administer a COVID-19 test if it is job-related and consistent with "business necessity." A COVID-19 test is considered a "medical examination" within the meaning of the ADA. It will qualify as a "business necessity" when it is consistent with guidance from the CDC (Centers for Disease Control and Prevention) or other state and local public health authorities. Other "business necessity" factors may include:

  • The level of community transmission
  • The vaccination status of the employees
  • The accuracy of different types of COVID-19 tests
  • The likelihood of breakthrough infections for those "up to date" on their vaccinations
  • The ease of transmissibility of the current variant
  • The possible severity of illness for the current variant
  • The contacts the employee has with others in the workplace
  • The potential impact on the employer's workplace if the employee is positive

The EEOC said employers may not require antibody testing because it does not reflect the presence of the active virus.

The EEOC said these changes are intended to reflect the evolving and changing nature of the pandemic. Employers should make individualized assessments on testing. Employers must execute their testing of potential employers uniformly.