New EEOC Guidance On COVID-19

The Equal Employment Opportunity Commission (EEOC) has updated its COVID-19 guidance to change its position on testing. While employers were permitted to test employees for COVID-19 at the start of the pandemic, employers can now do so only if the test is “job-related and consistent with business necessity.” The EEOC states: “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.”

COVID-19 testing is considered a “medical examination” under the Americans with Disabilities Act (ADA). Under the ADA, an employer cannot require a medical examination unless it is “job-related and consistent with business necessity.” The EEOC explains that this standard is met if testing is consistent with current (at the time of testing) guidance from the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and/or state/local public health authorities. In deciding whether testing is job-related and consistent with business necessity, an employer can also consider facts such as “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.”

Nevada’s Occupational Safety and Health Administration (NV OSHA) does not currently require employers to test employees for COVID-19. However, Nevada public accommodation employers are still required to include testing in the COVID-19 response plans mandated by NRS 447.345. This type of statutory requirement, which does not allow for an individualized assessment of job positions, should also satisfy the ADA’s requirement that testing be “job-related and consistent with business necessity.”

Finally, the EEOC has also updated other questions and answers on COVID-19 to address such issues as returning an employee to work after a COVID-19 infection and how to manage COVID-19 in the hiring and reasonable accommodation processes. We encourage all employers to review the EEOC’s updated questions and answers which are dated July 12, 2022.

If you have questions about the EEOC’s new guidance or would like to use COVID-19 testing as a screening mechanism to protect your workplace, please contact a KZA attorney to discuss medical examinations under the ADA. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.