By Jordan Jeter
On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) updated its technical assistance guidance for employers seeking more information about permissible COVID-19 policies in the workplace. This latest update makes changes throughout the guidance to address the evolving landscape that employers face more than two years into the pandemic.
The most significant change to the guidance relates to COVID-19 testing. Previously, the EEOC’s position was that COVID-19 testing for on-site employees was permissible in all scenarios. Now, employers must be able to meet the standard for medical examinations and inquiries contained within the Americans with Disabilities Act (ADA). More specifically, employers must be able to demonstrate that a viral test for COVID-19 is both job-related and a “business necessity.” The EEOC made clear, however, that the change is not meant to suggest testing is not warranted. Rather, the updated guidance is meant to acknowledge 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.”
Further, the updated guidance provides that employers cannot require a COVID-19 antibody test from employees as a requirement for returning to the workplace. Antibody tests—according to the Centers for Disease Control and Prevention (CDC)—are not indicative of a current infection, immunity, or an ability to return to work. Employers should not, therefore, require antibody tests for employees returning to work.
The EEOC updates continue to encourage employers to follow CDC and local health authority guidance to determine when and how employees can safely return to work following a COVID-19 positive test and/or symptoms. The EEOC emphasizes that isolation policies and vaccine mandates do not exist in a vacuum; employers must be mindful of their obligations under the ADA, Title VII, and the Age Discrimination in Employment Act when implementing policies and considering employee accommodation requests. Furthermore, employers must remain vigilant in protecting the confidentiality of employee medical information.
Finally, the EEOC continues to highlight the importance of monitoring updated public health guidelines issued by the CDC or state and local agencies. Presently, the CDC and the Multnomah County Health Department both recommend that employers not require negative test results in order for an employee to return to work. But with newly emerging variants and changing community vaccination and transmission levels, employers must work to ensure their policies are responsive to any changes in public health guidelines.
In light of the revised EEOC guidance, employers should review and update their COVID-19 policies and practices. Be sure to contact employment counsel if you need any assistance.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.