Employers must now justify mandatory coronavirus testing for workers, the Equal Employment Opportunity Commission (EEOC) said in a July 12 update to its technical assistance manual. Until now, the commission took the position that the Americans with Disabilities Act standard for medical examinations always permitted employer worksite COVID-19 testing. Going forward, employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify testing to prevent workplace transmission, the agency said. Specifically, an employer must show that testing is job-related and consistent with business necessity, as defined by the ADA.
A few significant updates are summarized below:
- Screening Employees: Prior to the July 12th update, an employer was legally permitted to require on-site COVID-19 viral screening testing. According to the new guidance, employers have to prove that testing employees is “job-related and consistent with business necessity.” Whether testing is a “business necessity” can be based on several factors, including community transmission rates, employee vaccination status, and working conditions.
- Antibody Testing: The EEOC clarified that employers cannot require antibody tests before allowing employees to re-enter the workplace, as they do not reliably determine whether someone is currently infected or immune.
- Applicants: The guidance makes clear that employers may test applicants for COVID-19, after making a conditional job offer, so long as they are doing so consistently.
- Rescinding Job Offers: A job offer can only be rescinded if it is absolutely necessary that the employee start his/her employment immediately and in-person. Current CDC guidelines should be evaluated prior to making this decision.
The EEOC’s update also included guidance on return-to-work standards, antibody testing, screening questions and testing for individual employees. READ MORE: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws
