On July 12, 2022, the U.S. Equal Employment Opportunity Commission updated its COVID-19 FAQs, with specific emphasis on viral testing, antibody tests, and other issues relating to workplace safety. The agency’s update arrives as the nation continues to wrestle with substantial community spread of COVID-19, and new and more contagious variants of the virus are emerging here and around the globe. Unfortunately, the update does not offer many specifics for employers, who continue to face the challenge of maintaining a safe, healthy, and productive work environment as more and more of their workers return to in-person work.
Limiting COVID Testing in the Workplace
Most notably, with respect to requiring employees to be tested for COVID as a condition of returning to or remaining at work, the EEOC’s updated guidance makes clear that an employer’s ability to require such a test is not unlimited. Rather, an employer can require such testing only where it is “job-related and consistent with business necessity” under the Americans with Disabilities Act (ADA). Specifically, the agency’s updated guidance with respect to testing provides:
A COVID-19 viral test is a medical examination within the meaning of the ADA. Therefore, if an employer implements screening protocols that include COVID-19 viral testing, the ADA requires that any mandatory medical test of employees be “job-related and consistent with business necessity.” Employer use of a COVID-19 viral test to screen employees who...
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