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EEOC Issues Updated Technical Assistance for Guidance on Workplace Testing Requirements

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) updated some of its Q&A guidance on workplace testing. Their updates clarify that under the Americans with Disability Act (ADA), an employer may administer a COVID-19 viral test when determining the safety of an employee’s initial or continued presence in the workplace. An employer may administer the viral test so long as the need for the viral test is job-related and consistent with business necessity.

Under the ADA, an employer may require an employee to submit to a medical examination when the examination is job related and consistent with business necessity. As such, an employer may implement a mandatory screening measure that includes the administration of a COVID-19 viral test. To meet the “business necessity” standard, an employer must make an individual assessment based on the following possible considerations:

• Level of community transmission
• The vaccination status of employees
• The accuracy and speed of processing of COVID-19 viral tests
• The degree of breakthrough infections possible for employees who are “up to date” on vaccination
• The ease of transmissibility and severity of illness of the current variants
• What type of contact the employee will have with others in the workplace or elsewhere

Creating a blanket testing protocol may not suffice under the EEOC rules. Employers should assess why a testing protocol is needed and whether it is job related and consistent with business necessity to be in compliance with ADA guidelines.

Furthermore, if a testing protocol is created to permit employees to re-enter the workplace, the updated EEOC guidance clarifies the type of test that may be used. According to the updated guidelines, “As of July 2022, CDC guidance explains that antibody testing may not show whether an employee has a current infection, as a result, it should not be used to determine whether an employee may enter the workplace.” Because an antibody test is used to show whether the body has antibodies either due to past infection or vaccination, under the ADA guides, this test does not meet the ADA’s “business necessity” standard, and therefore should not be used by employers to allow employees to re-enter the workplace. However, a viral test that shows whether an employee is presently infected with COVID-19 can meet the “business necessity” standard.

Cal/OSHA’s Emergency Temporary Standard has also listed guidelines for when an employer has developed an Injury and Illness Prevention Program (IIPP). Part of an employer’s IIPP includes making testing available at no cost to employees for the following reasons: an employee with COVID-19 symptoms, had “close contact” with a person with COVID-19 except for recently returned employee COVID-19 case without symptoms, during an outbreak, or during a major outbreak. However, the employer must ensure testing confidentiality. Furthermore, per the Department of Fair Employment and Housing (DFEH), applying the standard and guidance from the CDC, employers may mandate an employee to submit to a viral test to determine whether an employee has a COVID-19 infection before allowing an employee to enter the workplace.

For further information, the updated Q&A’s entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” can be found here. The DFEH employment information on COVID-19 can be found here. 

AP Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.