Employers who are conducting automatic COVID-19 testing of employees or gathering test results of employees’ families should beware: the Equal Employment Opportunity Commission (“EEOC”) has issued new guidance limiting the former and has penalized a healthcare practice recently for doing the latter.
New Guidance for Workplace COVID-19 Testing
Early in the pandemic, the EEOC issued guidance in the form of FAQs on “What You Should Know About COVID-19 and the ADA, Rehabilitation Act and Other EEO Laws” and has periodically updated that guidance as circumstances have changed. The latest update, issued earlier this month, makes clear that employers can no longer assume that their worksite COVID-19 testing automatically meets the required standard for workplace medical examinations and inquiries under the Americans with Disabilities Act (“ADA”). The ADA requires that such exams and inquiries be “job-related and consistent with business necessity.” The EEOC notes that employers will meet the “business necessity” standard when such testing is consistent with current guidance from Centers for Disease Control and Prevention (“CDC”), Food and Drug Administration (“FDA”), and/or state/local public health authorities. In determining whether workplace testing meets the business necessity standard, employers might consider, for example:
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