EEOC Recommends Employers Justify Mandatory Workplace COVID-19 Testing

The Equal Employment Opportunity Commission (EEOC) recently issued guidance about mandatory COVID-19 testing in the workplace. Until now, employers could require worksite COVID-19 testing without assessing current conditions or justifying its necessity. The EEOC stated in its guidance that employers now must perform an individualized assessment of the current state of the COVID-19 pandemic and other circumstances in the workplace to justify mandatory COVID-19 testing for employees. 

A test for COVID-19 is a medical examination within the meaning of the Americans with Disabilities Act (ADA). The EEOC guidance further states that employers must show that COVID-19 testing in the workplace is job-related and consistent with business necessity, as the ADA defines those terms. The EEOC makes it clear in its guidance that it is not suggesting that COVID-19 in the workplace is or is not warranted. 

Meeting the Business Necessity Standard

An employer can meet the business necessity standard when mandatory screening of employees is consistent with guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and other state or local public health authorities. Employers must consider all relevant factors in determining whether mandatory screening of employees is necessary. The factors that employers might consider when they assess the business necessity of mandatory COVID-19 testing in the workplace include the following:

  • The current level of community transmission;
  • The vaccination status of employees;
  • The accuracy and speed of proceeding with diverse COVID-19 tests;
  • The degree to which breakthrough infections are possible for employees who are up to date on their vaccinations;
  • The ease of transmissibility of the current variant(s) of the virus;
  • The possible severity of the current variant(s) of the virus;
  • What types of contacts do employees have with others in the workplace or in other locations in which they are required to work; and
  • The potential impact on operations if an employee enters the workplace with a COVID-19 infection.

The EEOC also points out in its guidance that requiring employees to take antibody tests does not meet the business necessity standard for medical examinations or inquiries for employees under the ADA. In addition, CDC guidance explains that antibody tests may not show whether employees have a current infection or if they are immune to infection. As a result, antibody test results are not useful in determining whether an employee should enter a workplace without risk of infecting others. 

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

The following two tabs change content below.

Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.
%d bloggers like this: