Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 12, 2022, the U.S. Equal Employment Opportunity Commission updated its COVID-19 FAQs, with specific emphasis on viral testing, antibody tests, and other issues relating to workplace safety. The agency’s update arrives as the nation continues to wrestle with substantial community spread of COVID-19, and new and more contagious variants of the virus are emerging here and around the globe. Unfortunately, the update does not offer many specifics for employers, who continue to face the challenge of maintaining a safe, healthy, and productive work environment as more and more of their workers return to in-person work.
Limiting COVID Testing in the Workplace
Most notably, with respect to requiring employees to be tested for COVID as a condition of returning to or remaining at work, the EEOC’s updated guidance makes clear that an employer’s ability to require such a test is not unlimited. Rather, an employer can require such testing only where it is “job-related and consistent with business necessity” under the Americans with Disabilities Act (ADA). Specifically, the agency’s updated guidance with respect to testing provides:
A COVID-19 viral test is a medical examination within the meaning of the ADA. Therefore, if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employer use of a COVID-19 viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when it is consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing.
If an employer seeks to implement screening testing for employees such testing must meet the “business necessity” standard based on relevant facts. 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. In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.
Based on this update, it appears that the EEOC plans to take the position that a COVID-19 screening test for employees entering the workplace is not per se or presumed permissible. Rather, an employer must be able to demonstrate that such a test is necessary for the safety of the workplace, and consistent with the job in question. However, the EEOC also advises employers to keep current with CDC recommendations regarding COVID exposure and infection, as well as those of state and local public health authorities.
That said, it is not clear what, if any, immediate practical impact this updated guidance will have in light of current rates of COVID-19 community transmission. On the same date that the EEOC’s update was issued, the CDC’s Community Tracker indicated high or substantial rates of COVID-19 transmission throughout almost all of the United States.
Other factors highlighted by the EEOC would also appear to call for more testing, not less at this time. As to ease of transmissibility, it has been widely reported that the emerging Omicron BA.5 variant is far more transmissible than previous variants and is spreading rapidly worldwide. As to vaccination rates, these vary widely by state, but the U.S. remains stalled at an overall COVID-19 vaccination rate of 67%, and a booster rate of just 32%. The CDC continues to emphasize the importance of obtaining booster doses of the COVID-19 vaccine, and employers are well advised to account for employee vaccination rates in their COVID-19 safety practices.
The timing of the EEOC’s updated guidance also seems at odds with the administration’s decision to extend COVID-19 public health emergency status, which has been in effect since January 2020, and was previously scheduled to expire on July 15, 2022. On July 14, 2022, the Department of Health and Human Services (HHS) announced that it will again extend this declaration and provide at least 60 days’ notice before ending the public health emergency. Plainly, HHS views the pandemic as still very much a public health crisis, suggesting employers that base decisions on the most up-to-date guidance from the CDC and other public health authorities will have strong arguments that their testing programs are justified as a matter of public health.
Antibody Testing Still Prohibited
The updated FAQs also restate the EEOC’s position that while a viral test for COVID-19 may in some instances be justified for entry to the workplace, reliance on an antibody test is under no circumstances permissible under the ADA. In support of its position, the EEOC notes that as of July 2022, the CDC’s guidance indicates that antibody testing may not show whether an employee has a current COVID infection or whether an employee is immune, and accordingly antibody tests do not satisfy the ADA’s “business necessity” standard for medical examination. It is unclear what this means for employers in states where state law exempts an employee from a vaccination or test requirement based on COVID antibodies or “natural immunity.” Presumably, if the employer is not requiring the employee to submit to an antibody test, but rather the employee is volunteering an antibody test result in support of their request for an exemption from a vaccination requirement, the situation would not implicate the ADA’s prohibitions on employer-initiated medical examinations or inquiries. However, EEOC has yet to offer its position with respect to the numerous state laws that have departed from CDC guidance.
In light of the EEOC’s recent updates, employers may wish to review their current protocols regarding mandatory testing for entry to the workplace and ensure that they are consistent with the agency’s stated position. It may be that the EEOC has simply articulated the analysis that it intends to apply at the point when COVID-19 has abated. For now, as the pandemic continues, it would appear that testing for the virus remains “consistent with business necessity.”
Littler’s Workplace Policy Institute (WPI) will continue to advise readers of relevant developments.