COVID-19 is here to stay – it’s a matter of learning to live with it.  As employers learn to operate with the reality of COVID in the workplace, the EEOC has updated its guidance on when employers can and cannot implement COVID testing programs. In addition to complying with federal law, employers must also consider relevant state law obligations.

Screening Employees

Viral testing, like that for COVID, is a medical exam which has implications under the Americans with Disabilities Act (ADA).  The ADA generally prohibits medical exams or disability-related inquiries for employees unless they are “job related and consistent with business necessity.” Whereas during the height of the pandemic, COVID testing was presumed to be job-related and consistent with business necessity, now the EEOC is asking employers to turn a critical eye to their testing requirements. 

Job-relatedness and business necessity are always vague standards, but the EEOC has provided some factors employers should consider when determining whether to test their employees for COVID:

• the level of community transmission;
• the vaccination status of employees;
• the accuracy and speed of processing for different types of COVID-19 viral tests;
• the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
• the ease of transmissibility of the current variant(s);
• the possible severity of illness from the current variant;
• what types of contacts employees may have with others in the workplace or elsewhere that they are required to work; and
• the potential impact on operations if an employee enters the workplace with COVID-19.

In practice, these factors suggest that a workplace with a relatively low vaccination rate and high community transmission rate may find COVID testing necessary to operate the business, whereas a workplace with a high vaccination rate and low community transmission rate, particularly where employees are able to effectively socially distance while at work, may find COVID testing unnecessary.

One common COVID screening scenario arises when an employer with a mandatory vaccination policy has granted an employee a medical or religious exemption from the vaccine requirement. In these cases, the employer may require COVID-19 testing as a form of reasonable accommodation. The updated guidance casts some doubt on whether employers can continue to regularly test employees as an alternative to vaccination.  While the EEOC guidance does not set a bright-line rule, employers should weigh the EEOC’s factors against its own circumstances to determine if they can continue this regular testing.  When vaccines are required in the workplace, employers likely have a stronger argument that routine testing of unvaccinated employees is job-related and consistent with business necessity.

The EEOC guidance notes the manner of COVID testing should be considered.  If an employer is requiring PCR tests on a regular basis, it may need to reconsider this policy because PCR tests usually take at least a day to process and tend to be more expensive than antigen tests.  The EEOC also reiterated that requiring a COVID antibody test does not meet the “business necessity” standard for employee testing and is prohibited under the ADA.

Simply put, in view of the factors above, employers need to continually assess their unique workplace conditions to ensure they are not putting their employees through unnecessary testing that could violate the ADA.  If you are one of the many employers currently enforcing mandatory testing policies, consider consulting with an employment attorney to ensure your requirements are in line with the new federal guidance.

Screening Applicants

If your company is hiring and inviting applicants to interview in-person, you cannot require them to undergo COVID-19 screening unless all visitors are required to do the same. After an offer of employment is made, however, but before employment begins, employers may require applicants to undergo COVID testing as long as the employer implements the same testing requirements for all similarly situated applicants. 

A prospective employee’s start date may be delayed by a positive COVID-19 test. But an employer may not withdraw a conditional offer due to a COVID diagnosis unless (1) the job requires an immediate start date, (2) CDC guidance recommends that the new employee not be in proximity to others, and (3) the nature of the position requires the person work in proximity to others.

Returning to Work

Most employers have come to grips with the reality that when an employee is infected with COVID, they need to stay home. What is not as clear, however, is when it is appropriate and what screening may be required for an employee to return to the workplace, particularly after they have recovered. While employers may follow CDC’s quarantine and isolation guidance, they may also continue to require a doctor’s note confirming that employees are clear to safely return.  Given the high rate of infections, however, many employers will likely rely on the CDC’s isolation guidance as a less burdensome way to manage employee absences.

Contact your local Dentons employment attorney if you have any questions or concerns about your company’s COVID-testing procedures.  As public health guidance continues to evolve, we strive to ensure our clients are equipped to comply with anti-discrimination laws while keeping their workplaces safe.