EEOC Again Revises Workplace Testing Guidance

The Equal Employment Opportunity Commission (EEOC) has published a new COVID-19 testing guidance for employers, which are the latest in a series of guidance revisions issued since the pandemic began in 2020.

EEOC announced the changes July 12 that were incorporated into its Technical Assistance Questions and Answers regarding how civil rights laws and commission regulations apply to how employers choose to deal with the illness. Concerns continue with reports that the virus continues to mutate, most recently into a more highly contagious version.

“In this document, the EEOC has revised the guidance in a manner that takes into account the current phase of the pandemic and employers’ renewed emphasis on returning to in-person or hybrid work,” observe attorneys Samantha Brooks, Karla Grossenbacher and A. Scott Hecker of the Seyfarth Shaw law firm.

EEOC said its newest Q&A revision “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.”

The commission said the reworking of the guidance also offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace.

“This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the Americans With Disabilities Act (ADA),” EEOC explained.

Throughout the pandemic, it has continued been critical for employers and employees to monitor current medical and public health guidance, the commission stressed. The Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and other medical and public state and local health authorities have issued new guidances and updated some existing guidance as circumstances have evolved.

The Occupational Safety and Health Administration (OSHA) also has said that it expects to issue new COVID-19 regulations, perhaps as early as this September.

Mandatory Testing?

The biggest change in the new guidance is that under the ADA EEOC has determined an employer may adopt as a mandatory screening measure a COVID-19 viral test when evaluating an employee’s initial or continued presence in the workplace, as long as it can show the testing is job-related and consistent with business necessity.

However, defining what is considered “business necessity” under the ADA is where things start to get a bit sticky. EEOC goes on to identify a number of considerations for employers to take into account in determining whether a business necessity justifies mandatory screening testing, presumably in the event the need for screening testing is not addressed by CDC, FDA, or local health authority guidance, the Seyfarth Shaw attorneys explain.

These factors include the level of community transmission, the vaccination status of employees, and what types of contacts employees may have in the workplace or work location. Employers also need to keep in mind that the revised guidance does not draw a distinction between screening testing required in the normal course and screening testing required of an unvaccinated person as an accommodation to a vaccine mandate.

Some might view this change in approach to testing as setting a higher bar for employers, the Seyfarth Shaw attorneys admit. However, the EEOC explains in its revised guidance that “this change is not meant to suggest that such testing is or is not warranted; but rather acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”

Under the EEOC’s previous guidance, if the employer had extended an employment offer to an applicant who needed to start work immediately, but they tested positive or had symptoms of COVID-19, the employer was permitted to withdraw the job offer.

The revised guidance provides that the employer may withdraw the offer only if the job requires an immediate start date; 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. EEOC advises that employers should also look to see if a start date can be adjusted before withdrawing an offer.

The revised guidance also clarifies that, although an employer is generally permitted by federal EEO laws to require employees to wear personal protective equipment (PPE) and/or engage in other infection control practices, such as hand washing, the employer must provide accommodations under the ADA and the civil rights law, absent undue hardship, if employees cannot comply with these requirements.

“The updated guidance reflects that employers and employees alike will feel the impacts of the COVID-19 pandemic for the foreseeable future,” the Seyfarth Shaw attorneys said. “Employers need to review their current practices and policies regarding mandatory testing, screening, and/or vaccinations programs; collection of proof of vaccination and/or testing records; and their accommodation processes to ensure compliance.”