On July 12, the Equal Employment Opportunity Commission (EEOC) issued new guidance to assure that the measures employers implement to protect their employees from Covid-19 comply with federal anti-discrimination laws, particularly the Americans With Disabilities Act. In the new guidelines the EEOC makes clear that, going forward, employers will need to assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of Covid-19. In other words, an employer may require an employee to submit to Covid-19 testing if the employer can show testing is job-related and consistent with business necessity.

In making the decision whether or not to require Covid-19 testing, the EEOC suggests that employers consider 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. The EEOC also suggests that employers check the latest guidance from the CDC, FDA and state and local health authorities to determine whether screening testing is appropriate for their employees.

As a practical matter, Employers can require employees who are coming into a worksite to be tested if they have Covid-19 symptoms, have been diagnosed with Covid-19, or have been exposed to someone who has been diagnosed with Covid-19. If an employee tests positive, they can exclude that employee from the workplace during the mandatory quarantine. Employers can also require that any employee who is returning to the workplace after having been diagnosed with Covid-19 provide a doctor’s note or a negative Covid-19 test before they can return to the workplace.

Employers can also require applicants to produce a negative Covid-19 test as long as the requirement is applied consistently for all applicants who will work in the employer’s workplace.

If you need assistance creating a Covid-19 testing policy for your business, or if you have any questions regarding these mandates, please contact Nancy Abrams at nabrams@sgrvlaw.com or Jennifer Myers Chalal at jchalal@sgrvlaw.com.