The Equal Employment Opportunity Commission ("EEOC") recently updated its guidance in July of 2022. According to the new guidance, the COVID-19 pandemic no longer automatically meets the business necessity requirement for medical examinations i.e. COVID-19 testing. This means that employers are now required to conduct an individualized assessment to determine whether COVID testing is warranted based on "evolving pandemic circumstances." Previously, employers were not required to conduct an individualized assessment because the pandemic justified viral screening of "employees to prevent workplace transmission of COVID-19." Simply put, employers could conduct COVID-19 testing at any time, for any reason. However, now employers may only utilize COVID-19 testing under the business necessity standard.

A COVID-19 viral test is considered a medical examination within the meaning of the Americans with Disabilities Act ("ADA"). This includes both rapid tests and laboratory tests. Under the ADA, employers are prohibited from conducting medical examinations unless "such screening is 'job-related and consistent with business necessity.'"

The EEOC outlined possible considerations employers may use when conducting the business necessity assessment, which includes:

• 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,

• what types of contacts...

Read Full Story: https://www.natlawreview.com/article/equal-employment-opportunity-commission-...