On July 12, 2022, the EEOC updated its informal COVID-19 guidance to employers in a number of significant and surprising ways, most of which call for more nuanced assessment of community risk and consideration of evolving public health guidance:

Testing Procedures

• COVID-19 viral testing as a mandatory screening measure to allow workplace presence is permissible only if the screening is “job-related and consistent with business necessity,” because it constitutes an ADA medical examination. Testing will be deemed “consistent with business necessity” only when it is consistent with CDC, FDA, and/or state or local public health authority guidance at the time of testing.

• This is a significant change from the EEOC’s assessment at the start of the pandemic that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing. Henceforth, employers will need to conduct an “individualized assessment” whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19. Considerations in making the “business necessity” assessment include 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 current on...

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