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EEOC: Employee COVID Testing Must Be ‘Business Necessity’

With COVID-19 cases spreading fast throughout the country in what experts say is the biggest surge since the pandemic started, employers who regularly test their workers may have to change their policies.

The Equal Employment Opportunity Commission in July 2022 issued new guidance for when employers can test their workers in order to comply with the Americans with Disabilities Act and other federal statutes. Employers will now only be able to test employees if they can prove that testing employees is a “business necessity.”

This is a significant change from the EEOC’s earlier guidance, which basically stated that any on-site employee testing was legal.

According to the EEOC’s updated technical guidance, “employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees.

Factors employers will need to consider include:

  • Community transmission levels,
  • Current COVID-19 variants and how easily they are transmitted,
  • Employees’ vaccination status,
  • Working conditions, and
  • The potential effects of positive cases on operations.

The guidance also recommends that employers considering testing, take into account current guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, as well state and local health authorities.

What you can do

To avoid legal or regulatory action, employers need to comply with the new guidance. But there is some leeway. Under EEOC guidance:

Employers can screen staff who come to work with COVID-19 symptoms or have been diagnosed with the coronavirus and are returning to work. And they can exclude from the workplace employees who test positive or exhibit COVID-19 symptoms.

If a worker has been away from work after testing positive for COVID-19, the employer can require a note from a doctor confirming they can safely return to work.

Employers can screen job applicants who come for on-site interviews for COVID-19. If you go this route, you have to be consistent and screen all applicants coming for interviews as well as others who enter the workplace. It’s important that employers are consistent in this regard to avoid running afoul of discrimination laws.

The EEOC wrote in its guidance: “The screening is limited to the same screening that everyone else undergoes. An employer that goes beyond that screening will have engaged in an illegal pre-offer disability-related inquiry and/or medical examination.”

If a job applicant tests positive, the employer has the right to withdraw the job offer if they need them to start immediately. It’s important that the employer needs the person to start immediately, and that remote work is not an option.

The takeaway

The new guidance is yet another legal hurdle for employers when it comes to dealing with COVID-19 in the workplace.

If you’ve been conducting worksite testing, you’ll need to revisit your policies and make sure they comport with the newly issued guidance.

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