It may, once again, be time for employers to review and update their COVID-19 workplace safety policies. In July 2022, the Equal Employment Opportunity Commission (EEOC) released updated guidance that employers must be able to show that COVID-19 viral testing is “job-related and consistent with business necessity,” as defined by the Americans with Disabilities Act (ADA), before they can require mandatory viral tests as a workplace screening measure. This departs from previous guidance, which had maintained that mandatory viral testing policies for COVID-19 would automatically meet the business necessity standard.
As a result of the updated guidance, employers should reconsider whether their current testing procedures are still necessary — and if so, under what circumstances. The EEOC’s guidance provides some examples of factors that employers might take into account when coming to their conclusions, 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 (g., working with medically vulnerable individuals); and
- the potential impact on operations if an employee enters the workplace with COVID-19.
The EEOC directs employers to current CDC guidance “and any other relevant sources” to further inform employers’ use of these factors. The EEOC’s guidance suggests it is in employers’ best interest to stay abreast of developments in public health and medicine, and to give careful consideration to the factors above before updating or implementing a COVID-19 testing policy.
How the EEOC will handle employers who decide to continue or restart a testing program based on local health information is unclear. It would appear that employers are better served by first looking at the last two factors, protection of vulnerable workers in the workplace and impact on customers and the likelihood of COVID-19 exposure, in order to build the job-related nature of the program and the case for it being a business necessity. When doing so, employers should document any factors or data considered, in the event that an employee challenges those policies at the EEOC.