Based on this update, the EEOC now advises that employers will need to justify any mandatory COVID-19 testing in the workplace to avoid violating disability discrimination law.
Until recently, employers had broad discretion to determine whether their employees were required to take COVID-19 tests prior to entering the workplace. Since the outset of the pandemic, the Equal Employment Opportunity Commission (EEOC) consistently allowed COVID-19 testing for on-site employees. Indeed, the EEOC took the position that the Americans with Disabilities Act (ADA) standard for medical examinations permitted such employer worksite COVID-19 testing.
However, on July 12, 2022, the EEOC updated its guidelines and now requires employers to assess whether current pandemic and individual workplace circumstances justify viral screening of employees. The agency published this revised guidance in light of the requirement under the ADA, which the EEOC enforces, prohibiting employers from mandating certain medical examinations or inquiries of employees. Thereafter, the EEOC updated its COVID-19 guidance and frequently asked questions, with specific emphasis on testing, including viral and antibody tests, as well as other workplace safety issues.
Based on this update, the EEOC now advises that employers will need to justify any mandatory COVID-19 testing in the workplace to avoid violating disability discrimination law. The EEOC stated that the July 12 update “makes clear that 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.”
Is Mandatory Testing Still Permitted?
The EEOC makes clear that mandatory testing to screen employees for COVID-19 is still permitted, but only under the appropriate circumstances. The EEOC guidance now notes that a COVID-19 viral test (i.e., a nasal or oral test that indicates whether someone is infected with COVID-19) is a “medical examination” as that term is used in the ADA. Therefore, employers that implement a mandatory testing protocol requiring that employees test negative for COVID-19 before entering the workplace must demonstrate that the testing policy is compliant with all requirements under the ADA.
Even though a viral COVID-19 test screening employees entering the workplace for COVID-19 is not by itself presumed permissible, this alone is not a declaration on whether viral testing for COVID-19 is or is not warranted. Rather, employers must make individual determinations and assessments in light of the evolving nature of both federal, state and local guidance and status of the pandemic to determine if testing is consistent with the requirements of the ADA. Thus, mandatory COVID-19 screening is still permissible if certain criteria are met.
Determining Whether Testing Is ADA Compliant
According to the EEOC’s recent guidance, employers that require viral testing for employees to enter or remain on-site must ensure that COVID-19 testing is “job-related and consistent with business necessity.” Indeed, this change falls in line with the EEOC’s pre-COVID guidance requiring that employees be subject to medical examinations. Specifically, the EEOC makes clear that an employee medical examination may be job-related and consistent with business necessity when objective evidence shows that the employer reasonably believes that either: (1) the employee's ability to perform essential job functions will be impaired by a medical condition or (2) the employee will pose a “direct threat”―meaning a significant risk of substantial harm―to themselves or to others.
Ultimately, 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. The EEOC explained that such testing will meet the business necessity standard when it is consistent with the current standards set forth in guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration and/or state or local public health authorities. While this explanation may not be particularly helpful in all cases since CDC and state and local guidance often change with little notice, the EEOC guidance goes on to provide the following factors employers can consider when evaluating whether testing is considered a business necessity:
- The level of community transmission.
- The vaccination status of employees.
- The accuracy and speed of processing of 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(s).
- The types of contacts employees may have with others in the workplace or other places where they are required to work.
- The potential impact on operations if an employee enters the workplace with COVID-19.
While the new guidance focuses primarily on whether a COVID-19 test is a business necessity, to move forward with testing, it must be job-related. A medical examination is considered “job-related” when an employer has a reasonable belief, based on objective evidence, that an employee's ability to perform essential job functions will be impaired by a medical condition. By way of example, this standard has been found to be met when an employer knows about a particular employee's medical condition, has observed performance problems and reasonably can attribute the problems to the medical condition.
As the pandemic continues to evolve and change, employers must stay current with relevant federal, state and local requirements regarding COVID-19 exposure to determine the appropriateness of its testing protocols and policies. Notably, any testing must be viral, as the EEOC continues to forbid antibody testing.
Continuing, the EEOC explained that, even if an employer determines that an employee is a direct threat and thus poses a “significant risk of substantial harm” either to the employee’s or another employee’s health or safety, the employer still cannot necessarily require viral screening for COVID-19 if a reasonable accommodation can be afforded to the employee. The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or sufficiently reduce the risk so the employee may safely return to or stay in the workplace while still performing the essential functions of the job.
Therefore, in reviewing whether an employee situation poses a direct threat and therefore requires a medical examination, the employer must conclude that there is no way to provide a reasonable accommodation (absent undue hardship). An employer’s consideration of a possible reasonable accommodation involves engaging in an interactive process with the employee. If there are no reasonable accommodations that sufficiently reduce or eliminate the direct threat from the employee’s presence, the employer still may be required to consider alternative accommodations such as telework, leave or—as a last resort—reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).
Responding to COVID-19 in the Workplace
The new EEOC guidance also establishes criteria for managing COVID-19 in the workplace in light of the new restrictions on testing.
Employers still may ask all employees who are physically entering a worksite if they have COVID-19 symptoms or have been diagnosed with or tested positive for COVID-19. Additionally, employers may exclude from the workplace employees with COVID-19 or associated symptoms because their presence would pose a direct threat to the health and safety of others. Employers should remember that, generally, they cannot screen employees who work remotely or who do not have in-person contact with co-workers, customers, vendors or other business partners. Also be aware that in some jurisdictions, excluding employees from the workplace may require that those employees are paid either their traditional wages or through paid leave.
Additionally, if employees miss work because they have tested positive for COVID-19, employers may require a note from a qualified medical professional confirming that they may safely return to the worksite and are able to perform their job duties. Requesting confirmation from a qualified medical professional is permitted under the ADA for two reasons. First, COVID-19 is not always considered a disability, so a request for confirmation may not be a disability-related inquiry. Second, if the request is considered a disability-related inquiry, it would meet the ADA’s requirement to be job-related and consistent with business necessity due to the risk of COVID-19 transmission in the workplace and objective concerns about the employee’s ability to return to work.
Employers are not, however, required to ask for a doctor’s note and may instead opt to follow the latest CDC, state or local public health guidance to determine whether an employee can safely return to the workplace. The EEOC cautioned that employers may want to consider other ways to determine the safety of allowing an employee to return to work if doctors and other healthcare professionals are unable to provide such documentation in a timely manner or at all. This might include reliance on local clinics to provide a form, stamp or email to confirm that an individual is no longer infectious and is able to resume working.
The EEOC guidance also discusses the screening of applicants and those with job offers. Employers are permitted to screen individuals with job offers for COVID-19 symptoms before they start work and after making a conditional job offer, as long as they do so for all entering employees in the same type of job. In addition, if an employer screens everyone (i.e., applicants, employees, contractors, visitors) for COVID-19 before permitting entry to the worksite, then an applicant in the pre-offer stage who needs to be in the workplace as part of the application process (e.g., for a job interview) may likewise be screened for COVID-19. The screening is limited to the same one that everyone else undergoes.
Finally, pursuant to current CDC guidance, an employer may delay the start date of an applicant who has COVID-19 or symptoms associated with it. Additionally, in certain circumstances, an applicant’s job offer may be withdrawn if:
- The job requires an immediate start date;
- The CDC guidance recommends the person not be in proximity to others, and
- The job requires such proximity to others, whether at the workplace or elsewhere.
The EEOC notes that the isolation or quarantine period may be short for some workers, and therefore, employers may be able to briefly delay the start date or allow the new hire to telework if the job duties can be performed remotely.
Testing Requirements in Other Jurisdictions
As always, employers should also be mindful to balance the updated EEOC requirements with state or local laws requiring testing in certain circumstances. This includes states that require testing under certain circumstances, such as California.
What This Means for Employers
In light of the EEOC’s recent updates, employers should review their current protocols regarding mandatory testing for entry to the workplace and ensure that they are compliant with what the guidance dictates. Employers with a multilocation workforce may need to implement varying testing requirements based on site location and the existence or absence of business necessity. Finally, determining “business necessity” may require employers to monitor and to make day-to-day decisions about testing based on a variety of ever-changing guidance from the CDC, as well as state and local health departments. As the EEOC's guidance concerning COVID-19 workplace viral testing may further evolve, it will remain important for employers to periodically review the EEOC’s current FAQs.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Michael S. Cohen, Maryam Maleki, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
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