Business necessity of COVID testing no longer presumed
At the outset of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) took the position that the Americans with Disabilities Act (ADA) standard for conducting medical examinations (job-related and consistent with business necessity) was always met for COVID-19 viral screening testing.
On July 12, 2022, the EEOC updated its position in light of the evolving nature of the COVID-19 pandemic. Now employers are required to "assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing."
The EEOC made it clear that this new update is not a pronouncement on whether "testing is or is not warranted." Instead, the new update allows employers to make their own assessments, given the evolving nature of the pandemic, to determine whether testing is consistent with the requirements of the ADA.
Employers may want to consider examining any mandatory screening testing program to determine whether it is consistent with business necessity. In addition, employers may want to continue to monitor the ever-changing guidance from the CDC, as well as state and local health departments, when reviewing their COVID-19 screening and response protocols.