New EEOC Guidance Requires Employers To Think Twice Before Asking Employees To Swab On The Job

Rob Duston

This is a summer when many employees (and employers) may be done with COVID-19, but the virus is not done with us. While government mandates have virtually disappeared, the expected surge of omicron variants during 2022, and the resulting increase in absenteeism due to illness and quarantine policies, may prompt employers to look at re-instituting COVID-19 precautions and procedures. The Equal Employment and Opportunity Commission (“EEOC”) recently released updated guidance on a number of issues. The most significant guidance discussed in this article addresses the legal rules for mandatory employer COVID-19 tests. A separate blog post will address the EEOC’s other changes. 

The Americans With Disabilities Act (“ADA”) requires that any medical examination or inquiries administered to employees as a precondition to entering the workplace must be both “job related and consistent with business necessity.” There are lots of prior EEOC guidance on how this applies to various types of medical exams and inquiries.  Until last week, the mere fact of the ongoing COVID-19 pandemic ticked both boxes: the EEOC previously advised that employers may take steps (i.e., testing) to determine if employees entering the workplace are infected with COVID-19 because an individual with a COVID-19 infection would pose a direct threat to the health of others in the workplace.  In other words, EEOC’s guidance effectively gave employers a green light to require COVID-19 testing of any employee entering the workplace, or certain classes of employees (such as front-line workers) without further circumstance-specific inquiry or analysis.

But on July 12, 2022, updated EEOC guidelines turned the green light to yellow. Click here to read the updated EEOC guidelines. Now, before requiring employees to take a COVID-19 test, employers must think first, and conclude that a COVID-19 test is both (1) job related, and (2) consistent with business necessity.  The business-necessity factor considers the relative risks of COVID-19 infection to employees and business operations.  To determine whether employee COVID-19 testing is consistent with business necessity, the EEOC suggests that employers undertake an honest analysis of the following non-exhaustive list of factors:

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

The EEOC advises that employers should reference public health guidance from the FDA, the CDC, and other state and local health authorities when undertaking this analysis.  One implication of this guidance is that employers may have a harder time defending mandatory screening tests of all employees who come to a workplace, regardless of frequency or nature of in-person contacts.

Employers should note, however, that this change only affects blanket screening policies.  It does not affect the EEOC’s other guidance, such as the use of COVID-19 testing as an alternative way of minimizing risk for individuals with approved medical or disability exemptions to vaccination.

As always, employers should remain vigilant of the changing conditions around COVID-19, including monitoring the ebbs and flows of transmission levels, remain apprised of guidance from federal, state, and local health authorities, and on the emergence of new and potentially more aggressive variants.  

If you have any questions about the EEOC’s guidance related to workplace COVID-19 testing, or any other issues related to COVID-19 and your business, please contact the authors or your regular Saul Ewing labor and employment attorney.

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