What has changed?

Under the July 12^th guidance, an employer may administer a COVID-19 test when evaluating an employee’s initial or continued presence in the workplace only “if the employer can show it is job-related and consistent with business necessity.” The EEOC revised its guidance section A.6. to make “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.” The EEOC’s previous guidance had stated that mandatory COVID-19 testing for on-site employees was legal in virtually any instance.

ADA Dictates New Guidance

The EEOC explains that under the Americans with Disabilities Act (ADA), a COVID-19 test is a medical examination within the meaning of the ADA. As a result, if an employer wishes to implement mandatory COVID testing screening protocols, the ADA requires that the tests be “job related and consistent with business necessity.” “Business necessity” can be determined by relevant facts such as the vaccination status of employees and the current levels of community transmissions. This also relates to what type of contact employees have in the workplace or elsewhere that they are required to work. It should also be noted the impact on an individual entering the workplace with a current infection if, for example, the individual works with or alongside immunocompromised people. Employers are additionally able to ask all employees who will be physically entering the workplace if they have COVID or COVID symptoms. These include but are not limited to chills, fever, cough, and shortness of breath.