On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its guidance Q&A responses to employers relating to COVID-19 workplace issues and the ADA . Most notably, the EEOC has changed its view on when employers can mandate COVID-19 viral testing for workers and still be in compliance with the ADA.[1]

Out with the Old and in with the New “Business Necessity” Requirement for Viral Testing

First, the ADA basics. A COVID-19 viral test is a medical examination, under the ADA, and may be required by an employer only if it is “job-related and consistent with business necessity.”  At the outset of the pandemic, the EEOC had relaxed that requirement, taking the position that because of the serious health risks that COVID-19 posed back then, the ADA standard for conducting medical examinations was “always met for employers to conduct worksite COVID-19 viral screening testing.” 

Now, with “evolving pandemic circumstances” and at least some metrics indicating that the pandemic is trending toward endemic stage, the EEOC has evolved too. It will no longer simply presume that COVID-19 viral testing meets the ADA’s “job-related and business necessity” requirement. Rather, moving forward, employers will need to make their own assessment whether their “current pandemic circumstances” and “individual workplace circumstances” justify viral screening testing of employees to prevent workplace transmission of COVID-19.

Which Assessment Factors Are Employers Supposed to Use?

How is an employer supposed to determine whether or under what circumstances COVID-19 viral testing will meet the ADA’s “job-related and business necessity” requirement? The EEOC identified a number of data points, including:

• 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.

What About COVID-19 Antibody Testing?

The EEOC also made it clear that COVID-19 “antibody testing” does not meet the ADA’s “business necessity” standard for medical examinations or inquiries and may not be required before allowing employees to re-enter the workplace. Based on current CDC guidance, antibody testing does not tend to show whether an employee has a current COVID-19 infection, nor does it establish that an employee is immune to such infection. Therefore, antibody testing should not be used to determine whether it is safe for an employee to enter the workplace.

What Are Next Steps for Employers?

We know from the EEOC’s Guidance update that evolving pandemic circumstances will require employers to engage in an individualized assessment to determine whether COVID-19 viral testing will meet the ADA’s “business necessity” requirement by evaluating both the current pandemic circumstances in their state or locality or the individual circumstances of their particular workplace. We will continue to monitor further developments on this and other COVID-19 workplace issues and update you promptly.

Bean, Kinney & Korman can help your business with COVID-19 workplace planning, policies, and practices.

Bean, Kinney & Korman’s employment law practice group has extensive experience in health, safety and employment-related issues and can provide you with quick, cost-effective assistance in implementing COVID-19 testing and vaccine policies and practices that are compliant with state workplace safety regulations and meet federal guidelines announced by the EEOC, OSHA and the CDC, while considering your business model and desired approach.

If you need assistance with COVID-19-related HR issues or questions, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.

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[1] Title I of the ADA applies to private employers with 15 or more employees. It also applies to state and local government employers, employment agencies, and labor unions.