EEOC has updated a number of Q&As on July 12, 2022, including former answers A.6 and A.7 which pertain to testing employees for COVID.
EEOC’s assessment at the outset of the pandemic was that the ADA standard for conducting medical examinations was, at that time, always met for employers to conduct worksite COVID-19 viral screening testing.
With the revision of Q&A A.6, below, on July 12, 2022, EEOC makes 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.
A.6. offers employers possible factors to consider in making this assessment, including community transmission levels and types of contacts between employees and others in the workplace. This change is not meant to suggest that such testing is or is not warranted; rather, the revised Q&A 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.
Q&A A.6 provides an answer to the question “Under the ADA, may an employer, as a mandatory screening measure, administer a COVID-19 viral test (a test to detect the presence of the COVID-19 virus) when evaluating an employee’s initial or continued presence in the workplace? (Updated 7/12/22)”
Yes, if the employer can show it is job-related and consistent with business necessity the “business necessity” standard based on relevant facts.
The answer goes on to state that “Possible considerations in making the “business necessity” assessment may 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 “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 contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19. “
“In making these assessments, employers should check the latest CDC guidance (and any other relevant sources) to determine whether screening testing is appropriate for these employees.”
And Q&A A.7 is also relevant to this topic. “Under the ADA, may an employer require antibody testing before permitting employees to re-enter the workplace? (Updated 7/12/22)”
“No. An antibody test, as a medical examination under the ADA, must be job-related and consistent with business necessity. As of July 2022, CDC guidance explains that antibody testing may not show whether an employee has a current infection, nor establish that an employee is immune to infection; as a result, it should not be used to determine whether an employee may enter the workplace”.
“Based on this CDC guidance, at this time such testing does not meet the ADA’s “business necessity” standard for medical examinations or inquiries for employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. An antibody test is different from a test to determine if someone has evidence of infection with SARS-CoV-2 or has COVID-19 (i.e., a viral test).”
James Whitlach is a former real estate agent who was affiliated with defendant Premier Valley, Inc., doing business as Century 21 MM,, a real estate brokerage firm