New guidance from the U.S. Equal Employment Opportunity Commission (EEOC) requires employers to consider more factors when deciding whether to screen employees for COVID-19.
In a July 12, 2022, update to its technical assistance guidance, the EEOC said, “going forward employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.”
Among other laws, the agency enforces the Americans with Disabilities Act (ADA), which protects workers from certain medical examinations or inquiries. The EEOC previously said the ADA standard was “always met” regarding testing of on-site employees for COVID-19. Now, employers will have to prove that testing employees is a “business necessity,” which can be based on factors like community transmission, workers’ vaccination status, or certain working conditions.
“This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA,” the agency said in the introduction to its updated question-and-answer guidance.
If certain criteria are met, an employer is allowed to ask questions or otherwise screen an employee to help determine if they have COVID-19. The EEOC states, “If an employer wishes to ask only a particular employee to answer such questions, or to have a temperature reading or undergo other screening or testing, the ADA requires the employer to have a reasonable belief based on objective evidence that this person might have the disease. So, it is important for the employer to consider why it wishes to take these actions regarding this particular employee, such as a display of COVID-19 symptoms.”
The updated Q&A also makes clear that employers can’t require an antibody test from employees as a requirement for returning to the workplace, based on the Centers for Disease Control and Prevention guidance that those tests can’t determine whether someone currently has an infection or if that person is immune.
Employers are permitted to require a note from a medical professional before returning a previously infected employee to work. “When an employee returns to the workplace after being out with COVID-19, the ADA allows an employer to require confirmation from a qualified medical professional explaining that the individual is able to safely return,” the guidance states.
If in doubt about COVID testing, please reach out to Employers Council for advice.
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