On July 12, the Equal Employment Opportunity Commission (EEOC) released an amended Technical Assistance Q&A on the interaction between COVID-19 response measures and federal civil rights laws. While the revisions address a number of topics, the most important change involves the EEOC’s position on when employers can test employees for COVID-19. Under the Americans with Disabilities Act (ADA), employers can only require medical testing of employees when they can demonstrate “business necessity.”
The previous response to Question A.6. said that the EEOC will presume business necessity for testing for COVID-19 based on the nationwide pandemic. The revised guidance removes this presumption, advising employers that they must “assess whether current pandemic circumstances and individual workplace circumstances justify viral screening testing of employees to prevent workplace transmission of COVID-19.” The EEOC says that employers should look at the CDC and other information on community infection rates when determining whether to test employees.
The revisions to the guidance do not directly affect employer vaccination mandates (see here). As long as the employer provides accommodation for religious and disability-based objections, they can continue to mandate COVID-19 vaccines (subject to state laws). The guidance also does not specifically address employer policies requiring employees to provide results of tests they obtain on their own. Presumably, the same ADA reasoning would apply with regard to the employer’s need to demonstrate business necessity.