The US Equal Employment Opportunity Commission updated its Technical Assistance Questions and Answers on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, changing its position on conducting worksite COVID-19 viral testing. 

At the outset of the pandemic, EEOC’s assessment was that the Americans with Disabilities Act (ADA) standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. 

A COVID-19 viral test is a medical examination under the ADA. Therefore, the employer must comply with the ADA requirement that mandatory medical tests be “job-related and consistent with business necessity.”

Now, with the revisions of a number of Q&A’s on July 12, 2022, the EEOC 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.

Question A.6. asks: “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?” 

The updated response is, “yes, if the employer can show it is job-related and consistent with business necessity.”  

Generally, employers can meet the “business necessity” requirement if requiring the COVID-19 viral testing is consistent with federal and/or state/local public health authority guidance that is current at the time of testing. 

Other considerations in making the “business necessity” case include: 

• Level of community transmission; 
• Vaccination status of employees; 
• Accuracy and speed of processing for different types of COVID-19 viral tests; 
• Degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations; 
• Ease of transmissibility of the current variant(s); 
• Possible severity of the illness from the current variant; 
• Types of contacts employees may have with others in the workplace or worksites; and 
• Potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC points out, “this change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”

Employers seeking to implement or continue viral screening testing for employees should check the latest Centers for Disease Control, Hawaii Department of Health, and other relevant guidance to determine if viral screening testing is appropriate for its employees.