The EEOC Revises COVID-19 Guidelines, including a New Testing Standard

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The Equal Employment Opportunity Commission (“EEOC”) has updated its guidelines with respect to COVID-19. The EEOC has updated its “Technical Assistance Questions and Answers” which includes a new standard of how employers who are still testing their employees for COVID-19 can comply with the Americans with Disabilities Act (“ADA”).  To note, these guidelines do not have the force and effect of law, however, they provide valuable insight into how the EEOC interprets the laws that they enforce.

There are many items that have been updated, and employers should review all the updated guidelines. In this article, we will highlight some of the most important updates.  Questions and Answers from the EEOC’s guidelines are reproduced below.

A.5. When an employee returns to the workplace after being out with COVID-19, does the ADA allow employers to require a note from a qualified medical professional explaining that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties?

Yes. Alternatively, employers may follow Centers for Disease Control (“CDC”) and Prevention guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional.
A.6. Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace?

Yes, if the employer can show it is job-related and consistent with business necessity.

The EEOC explained that in the future, employers will need to consider whether current COVID-19 conditions and the particular workplace circumstances warrant viral screening testing of employees to avoid the spread of COVID-19. Possible considerations when making the “business necessity assessment” include community transmission levels, the vaccination status of employees, and the types of common contacts between employees and others in the workplace. In essence, the EEOC is acknowledging that as this pandemic continues to evolve, a prudent approach for employers will be to perform individualized assessments to determine whether such testing is justified and consistent with the requirements of the ADA.

A.7. Under the ADA, may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity. Currently, the CDC’s position is that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection. As a result, this type of testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees.  Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.

Other notable highlights that are not discussed in this article include that COVID-19 screening questionnaires are still broadly permitted, that employers may screen individuals with job offers for COVID-19 symptoms before they start work (but consistency is key), and that reviewing other employment laws outside the ADA is critical if an employer is continuing to test workers for COVID-19.

For more information on the revisions of the EEOC’s COVID-19 guidelines, contact us at info@mnklawyers.com.

This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.

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