By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

• The level of community transmission
• The vaccination status of employees
• The accuracy and speed of processing different types of COVID-19 viral tests
• The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
• The ease of transmissibility of the current variant(s)
• The possible severity of illness from the current variant
• What types of contact employees may have with others in the workplace or elsewhere that they are required to work
• The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, that employers still cannot require antibody testing before permitting employees to re-enter the workplace.

The State of the Pandemic:

This updated guidance comes as the CDC’s community transmission map shows more than 95% of U.S. counties are experiencing high or substantial rates of transmission and the Department of Health and Human Services extended the COVID-19 public health emergency. To add to the uncertainty, the BA.5 subvariant, which accounts for more than 60% of new COVID-19 infections, is immune evasive—someone who is fully vaccinated and boosted is still at risk for a breakthrough infection. While these factors may weigh in favor of “business necessity,” a White House fact sheet continues to tout vaccination and boosters “as the single most important tool to protect people.”

Relying on state and local guidance, may be informative, but is not outcome determinative. For example, Cal/OSHA, which is charged with workplace safety and health for the state of California, continues to maintain a COVID-19 Emergency Temporary Standard and updated its FAQs as recently as July 25. In contrast, Los Angeles County, which was poised to reinstitute a county wide mask mandate last Friday, July 29, backed away from the idea with the expectation that the County would move from high transmission to medium.

Key Takeaways:

Amid what appear to be mixed signals about the state of the pandemic, employers should review their current COVID-19 testing policies. If these policies mandate testing, employers should analyze whether the factors outlined by the EEOC weigh in favor of a “business necessity” for continued testing. Ultimately employers who decide there is a “business necessity” for continued testing, should continue to monitor all the factors that weighed in favor of “business necessity” and update their testing policy as necessary.