Employment Law Updates

The EEOC has updated its guidance concerning an employer’s ability to require testing of employees for Covid-19. The Americans with Disabilities Act (ADA) allows mandatory medical examinations only if they are job-related and consistent with business necessity. The new EEOC guidance (found at U.S. EEOC) elaborates on the following question and answer posed in the guidance:

A.6. 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 guidance provides several possible factors for an employer to consider when determining if mandatory Covid testing meets that above standard:

  • The level of community transmission.
  • The vaccination status of employees.
  • The degree of breakthrough infections of vaccinated workers.
  • The transmissibility of current variants.
  • The possible severity of illness from a current variant.
  • Contacts employees may have with others during the course of their work.
  • The potential impact on operations if an employee enters the workplace with COVID-19.

Employers should carefully consider those factors before requiring employees to be tested for Covid. The EEOC says that “This change is not meant to suggest that such testing is or is not warranted,” but employers must make an “individualized assessment” before mandating testing.

John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.

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