Written by Stephen Trimboli

The federal Equal Employment Opportunity Commission (EEOC) administers most of our significant federal anti-discrimination laws, including the Americans with Disabilities Act (ADA). Among the ADA’s provisions is a prohibition against employers subjecting employees to “medical examinations.” An employer may subject employees to medical examinations only when it is “job-related and consistent with business necessity” to do so. Mandatory screening for COVID-19 infection is a “medical examination.” The EEOC had taken a lenient – and quite practical – approach for the bulk of the COVID pandemic, allowing employers the flexibility to utilize this measure as a means of preventing workplace spread. However, matters have changed.

As recently as May 28, 2022, the EEOC had advised that mandatory testing was permissible “because an individual with the virus will pose a direct threat to the health of others.” But on July 12, 2022, the EEOC revised its official guidance. Mandatory testing will now be permissible only if the employer meets the “job related and consistent with business necessity” standard “based on relevant facts” of each employer’s specific circumstances. Examples of the “relevant facts” to be considered are the following:

• The level of community transmission.

• The percentage of the workforce that is vaccinated.

• The accuracy and processing speed of the available approved forms of viral tests.

• The degree to which “breakthrough” infections are possible for those who are fully vaccinated and boosted.

• The ease of transmissibility of the current variants.

• The possible severity of illness from the current variants.

• The degree to which infected employees would have contact with co-workers, customers, or others in the workplace, including medically vulnerable individuals.

• The potential impact on operations if an infected employee enters the workplace.

These are examples, but not an exclusive list, of the “relevant facts” an employer is now expected to consider before commencing or continuing viral test screening.

In an introductory statement, the EEOC warns that its July 18^th 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.” Notably, the language stating that infected individuals “will pose a direct threat to the health of others” has been deleted.

This new standard applies to employers who conduct viral test screening themselves. On the other hand, the EEOC still would permit employers to ask employees who will be physically entering the workplace if they have been tested for COVID, and to exclude from the workplace anyone who refuses to answer whether he or she has been tested for COVID. Employers may also exclude those with COVID or COVID symptoms from the workplace.

It is not clear why the EEOC chose to amend its guidance in this way at a time in which case numbers appear to be rising, or why it no longer believes that infected individuals “will pose a direct threat to the health of others.” It is clear, however, that employers who conduct viral test screening are facing a new challenge. Partnering with trusted, experienced legal advisors such as Trimboli & Prusinowski’s attorneys to successfully navigate these waters is critical. Call our office to set up an appointment.