During the early stages of the pandemic, many employers implemented mandatory, periodic COVID-19 screening tests for all employees. [1] At that time, the EEOC approved the testing, finding that it was always “job-related and consistent with business necessity,” which is the standard employers must meet to conduct medical examinations under the Americans with Disabilities Act (“ADA”).

In July 2022, the EEOC updated its guidance. Now, COVID-19 screening does not automatically meet the “job-related and consistent with business necessity” test. Instead, the screening only meets this standard when it is consistent with guidance from Centers for Disease Control and Prevention, Food and Drug Administration, and/or state and local public health authorities that is current at the time of testing.

This means that, moving forward, employers must regularly assess whether current pandemic and individual workplace circumstances meet the ADA’s job-related and the business necessity standard. The factors employers may consider include:

• The level of community transmission;

• The vaccination status of employees;

• The accuracy and speed of processing for different 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 course of their work; and

• The potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC emphasized that this update does not suggest that COVID-19 screening is or is not warranted. Instead, the update acknowledges that continually evolving pandemic circumstances will require ongoing and periodic individualized assessments by employers, using factors like those above along with the current public health authorities’ guidance, to determine whether this screening meets the ADA’s job-relatedness and business necessity test.

Given all of this, employers should continually monitor guidance by public health authorities on the current threat posed by COVID-19 and regularly evaluate it along with the factors above to determine whether its COVID-19 screening, at any point in time, meets the ADA’s job-relatedness and business necessity standard.

For assistance navigating this, please reach out to your Client Experience Manager

[1] Please note that the EEOC’s new guidance focuses on mass screening, not the testing of individual, symptomatic employees.

This article is for informational purposes only and should not be considered legal advice. Please consult with your legal counsel regarding any specific situation, particularly given that this is a developing area of the law.

Written by Chelsea Glover and Christie Newkirk from Carrington, Coleman, Sloman & Blumenthal, L.L.P.