According to newly issued guidance from the Equal Employment Opportunity Commission, employers must demonstrate that onsite employee COVID-19 testing for onsite employees is a “business necessity” in order to comply with requirements under the Americans with Disabilities Act. Employers should consider a number of factors, including community transmission and employee vaccination status, in determining whether such testing is a business necessity.
The EEOC had previously stated that employee COVID-19 testing was legal, period. The new guidance represents a shift that the EEOC says is based on “evolving pandemic circumstances.” “This change is not meant to suggest that such testing is or is not warranted; rather the revised [guidance] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”
Now, “employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing” for employees. The guidance provides several factors that employers should consider when determining whether onsite screening is necessary, including:
- Level of community transmission,
- Employee vaccination status,
- The accuracy and speed of the testing types used,
- Transmissibility and possible severity of illness from the current variant, and
- Potential impact on operations if an employee enters the workplace with COVID-19.
Requiring antibody testing prohibited: The guidance also clarifies that employers cannot require antibody tests from employees as a condition of returning to the workplace, based on CDC guidance on the effectiveness of such tests. Further, the guidance makes clear that employers may test potential employees for COVID-19 as long as the policy is enforced uniformly. Finally, employers may only rescind a job offer after a positive COVID-19 test if it is necessary that the employee start right away and in person.
