Business and Legal Insights

On July 12, 2022, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance on COVID-19.[1]  Below are some highlights of the new EEOC guidance.

(1) Employers Can Test Employees if Consistent with Business Necessity and Job Related

Under the Americans with Disabilities Act (“ADA”), an employer may administer a Covid-19 test if the employer can show it is job-related and consistent with business necessity.  Possible considerations in making the “business necessity” assessment may include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of Covid-19 viral 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 variant(s), the possible severity of illness from the current variant, 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), and the potential impact on operations if an employee enters the workplace with Covid-19.

(2) Employers Cannot Require Antibody Testing

Under the ADA, employers cannot require antibody testing before allowing employees to re-enter the workplace.  Centers for Disease Control (“CDC”) guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection, thus, such testing does not meet the ADA’s “business necessity” standard for medical examinations.

(3) If Hiring, Employers Can Screen for Covid-19 Symptoms

An employer may screen job applicants for Covid-19 symptoms after making a conditional job offer, as long as it does so for all entering employees in the same type of job. If an employer screens everyone for Covid-19 before entry, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened, but that screening must be limited to the same screening that everyone else undergoes.

(4) Employers Can Require a Note From a Qualified Medical Professional After an Employee Contracts Covid-19 or Follow CDC Guidance

When an employee returns to work after having Covid-19, the ADA allows an employer to require confirmation from a qualified medical professional that the individual is able to safely return. Alternatively, employers may follow CDC guidance to determine whether it is safe to allow an employee to return without confirmation from a medical professional.

Employers should review their current policies and procedures to ensure prompt compliance with these new guidelines.

[1] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws